Rose v. City of Baltimore

• Decision Date: 26 March 1879
• Citation: 51 Md. 256
• Parties: GEORGE ROSE v. THE MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

51 Md. 256

GEORGE ROSE v. THE MAYOR AND CITY COUNCIL OF BALTIMORE.

Court of Appeals of Maryland

March 26, 1879

APPEAL from the Circuit Court for Howard County.

This was an action of assumpsit instituted in the Superior Court of Baltimore City, by the appellee against the appellant, to recover the amount of certain promissory notes drawn by the appellant in favor of the appellee. The case was afterwards removed to the Circuit Court for Howard County and submitted to, and tried before the Court, upon the following agreed statement of facts:

It is agreed by the respective counsel in this case, that the facts contained herein, shall be considered as proved, and competent evidence in the trial: that Richmond market is one of the markets of, and situated in Baltimore City, and that the Mayor and City Council is seized in fee simple of the said market, and the said market was established by the Act of the Legislature of Maryland, passed February of 1834 (Acts 1833, ch. 35,) and Act of 1852, ch. 30, and said market was subsequently added to, under the Act of the said Legislature, passed May 4, 1853, (1853, ch. 260,) that the property and land for said market, and its addition, were acquired for the purpose, and in accordance with the aforesaid Acts and that the said Acts, and the statements they contain, are admitted as evidence in this action.

That the said Richmond market and its addition contain numerous stalls or stands for the sale of commodities, and that some of said stalls are known as and are permanent, being affixed to the soil; that the stalls or stands in controversy in this action, are permanent as aforesaid, and are also what are known as "Butchers' Stalls."

That on the 5th of December, 1872, the advertisement herewith filed as evidence, and marked "Defendant's Ex. G. R., No 1," appeared for the first time in the "Sun" newspaper of Baltimore city, and also a similar advertisement appeared in the "American," "Gazette," and "German Correspondent," and that said advertisements appeared daily in said newspapers, from December 5th, as aforesaid, to the 12th of December, 1872 inclusive; and that there was no other public notice by advertisement of the proposed sale mentioned in the before mentioned advertisement, except said sale was advertised and made public by handbills, but not for the period of three weeks before said sale mentioned in said newspaper advertisements.

That on the 12th of December, 1872, Samuel Maccubbin, then Comptroller of Baltimore City, and the same person mentioned in said advertisements, did sell, through F. W. Bennett, an auctioneer, at public auction, certain stalls or stands in controversy in this action, and hereafter more particularly described, subject to the ordinances of the Mayor and City Council then in force, and any that might thereafter be enacted.

That said defendant at said auction, did bid in two of said stands, numbered respectively, Nos. 22 and 38, for the following prices: Stall No. 22 for $1600; stall No. 38 for $2200; and that subsequently, to wit, on the 17th day of January, 1873, said defendant did pay on said stalls the sum of $950, and did pass his several negotiable notes to said Samuel Maccubbin for the balance of said purchase money, and upon the receipt of said purchase money and said notes, the said Samuel Maccubbin did hand and give to the said defendant certain two paper instruments, herewith filed and marked "Defendant's Ex. G. R., Nos. 2 and 3;" the due execution of said notes and writings, and the truth of their contents, are hereby acknowledged, and are admitted in this cause as evidence.

It is further agreed, that said defendant entered into the possession of said stalls or stands, and thereafter occupied the same, and paid a certain yearly license and rental therefor, to sometime in 1875, from which time said defendant has not paid said license or rental, nor has he actually made use of or occupied the same; and that for a long time after said sale, said defendant believed that said sale was in all respects valid, and had been attended in its execution with no irregularity; but when said defendant learned, on or about 18th July or August, 1875, that the validity of said sale was questioned, the said defendant made no further payments on account of the purchase money of said stalls or stands.

And it is further agreed, that said defendant, on April 8th, 1878 did hand a written notice to the Mayor of Baltimore City, directed to the Mayor and City Council of Baltimore notifying said Mayor and City Council, that the said Rose did then tender possession of said stalls to said plaintiff, and withdrew from any contract of sale, from which he had not hitherto withdrawn, and also demanded a return of the purchase money he had paid on and for said stalls; all of which the said plaintiff refused to do or comply with.

And it is further agreed, that some of the stalls in some of the markets have been sold without any special ordinance therefor, and others under special ordinances, ordering and sanctioning the same to be done.

It is further admitted, that on the 5th of June, 1877, a ratification act or ordinance was enacted by the Mayor and City Council of Baltimore, which, it is admitted, shall be read in evidence in this cause, subject to all legal exception thereto, entitled "an Act to ratify and confirm sales of market stalls in certain markets in the City of Baltimore;" and further, that a suit was instituted prior to the passage of said ordinance, to wit: on the 2nd day of June, 1877, which said suit is still pending in the Baltimore City Court, by the defendant, George Rose, for the recovery of the money paid by said Rose to said Mayor and City Council, on account of the purchase of said stalls.

It is agreed by the counsel in this case, that the Court shall enter up judgment upon the facts in this case.

Dfdt. Ex. G. R., No. 1.

Richmond Market Butchers' Stalls--Permanent and Eave Stalls in the New Richmond Market, by Public Auction.

This (Thursday) morning, December 12th, 1872, at 11 o'clock precisely, on the premises, we shall sell by direction of the Comptroller of the City of Baltimore, 50 butchers' stalls, 100 permanent stalls, 100 eave stalls.

Terms:--One-fourth cash, balance in four, eight and twelve months, with interest. Rent of butchers' stalls $20, permanent $4, and eave $2 per annum.

N. B.--The above stalls will be sold subject to the Ordinances of the Mayor and City Council of Baltimore city, regulating Markets.

SAMUEL MACCUBBIN, Comptroller.

F. W. BENNETT & Co., Auctioneers.

Dfdt. Ex. G. R., No. 2.

COMPTROLLER'S OFFICE,

Baltimore, Jany. 17th, 1873.

Received of George Rose, four hundred dollars, for butcher stall, No. 22, New Richmond Market; also his promissory notes dated 12th of December, 1872, at four, eight and twelve months after date, for four hundred dollars each, with interest; which, when paid, will be in full for the above stall; said stall sold subject to the ordinances that are or may be passed by the Mayor and City Council of Baltimore, regulating Markets.

SAMUEL MACCUBBIN, Comptroller.

Dfdt's Ex. G. R., No. 3.

COMPTROLLER'S OFFICE,

Baltimore, Jany. 30th, 1873.

Received of George Rose, five hundred and fifty dollars, for butcher stall, No. 38, New Richmond Market; also his promissory notes, dated 12th of December, 1872, at four, eight and twelve months after date, for five hundred and fifty dollars each, with interest; which, when paid, will be in full for the above stall; said stall sold subject to the ordinances that are or may be passed by the Mayor and City Council of Baltimore, regulating Markets.

SAMUEL MACCUBBIN, Comptroller. The following appeared at the end of each receipt: Rent for stalls, twenty dollars each number per annum. License, five dollars each number per annum.

Exception.--At the trial the defendant offered seven prayers, as follows:

1. If the Court find from the evidence, that the Richmond market is a public market and situated in the city of Baltimore, and was established under and in accordance with the Acts of 1833, ch. 35, 1852, ch. 30, and 1853, ch. 260, of the Legislature of Maryland, and that the said market contains certain stalls or stands for the sale of commodities, and that a certain Samuel Maccubbin was during the year 1872, the Comptroller of Baltimore city aforesaid, and that there were published in said city during the said year 1872, the following newspapers: The Sun, Gazette, American and German Correspondent, and that said Samuel Maccubbin did, in each of said papers, on the 5th of December, 1872, insert a notice, and that the same continued daily in said papers until 12th of December, 1872, that certain stalls in said market would be sold on the 12th of December, 1872, and also that on the 12th December, 1872, the said Samuel Maccubbin did cause many of said stalls in said market to be sold, and that at said sale said Rose did buy in certain stalls numbered 22 and 38, and that said stalls were sold subject to the ordinances of the Mayor and City Council of Baltimore, then in force, and all thereafter enacted in relation to said stalls or stands. That said defendant did pay a large sum of money thereon, to wit: the sum of $950, and enter into possession of the same; * the verdict however must be for the defendant, if the Court further find, that the said stalls Nos. 22 and 38, were not sold, leased or disposed of to said defendant for a certain and limited period of time, but that said stalls were sold or disposed of in perpetuity or absolutely.

2. If the Court find from the evidence all the facts stated in the first instruction prayed for by said defendant to the asterisk in said first prayer, and further find, that said stalls or stands ...