Rothman v. Silver

• Decision Date: 06 February 1967
• Docket Number: No. 73,73
• Citation: 245 Md. 292,226 A.2d 308
• Parties: William H. ROTHMAN v. Donald A. SILVER.
• Court: Maryland Court of Appeals

Page 292

245 Md. 292

226 A.2d 308

William H. ROTHMAN v. Donald A. SILVER.

No. 73.

Court of Appeals of Maryland.

Feb. 6, 1967.

Paul Weinstein, Baltimore, for appellant.

Charles C. W. Atwater, Baltimore (Walter C. Mylander, Jr., and Reuben L. Uman, Baltimore, on the brief), for appellee.

Before HAMMOND, C. J., and HORNEY, OPPENHEIMER, BARNES and FINAN, JJ.

HAMMOND, Judge.

This case involves the construction and effect of a written contract whereby Rothman sold a taxicab and a Public Service Commission franchise to Silver for $2,000 in cash and a balance of $9,072 to be paid over a four-year period with interest at six per cent. Silver, the buyer, says the writings constituting the integration must be read to mean that interest is to be paid on declining balances only, else the ugly head of usury would be raised. Rothman, the seller, contends, first, that the agreement was that Silver would pay the deferred balance of the purchase price, $9,072, plus interest at six per cent a year on $9,072 for each of four years (that is, twenty-four per cent of $9,072, which equals $2,177.28) or a total of $11,249.28, and, second, that the usury statutes apply only to loans of or forbearances to collect money and the present transaction was a sale and purchase of personalty as to which the parties had a complete unrestricted right of freedom of contract.

Silver filed a bill of complaint which alleged that on February 7, 1962, he had 'purchased a taxicab and Public Service Commission franchise' from Rothman for $11,072, paying $2,000 in cash and giving a chattel mortgage on the taxicab and franchise and a confessed judgment note, in both of which he agreed to pay $9,072 plus 'interest at 6% per year' to be paid 'in installments of Fifty-four Dollars and Eight Cents ($54.08) per week' commencing 'February 21, 1962, and continuing thereafter for 208 consecutive weeks until the whole principal sum and interest are fully paid.' A further allegation was that the principal sum of $9,072 'with interest at six per cent (6%), will be fully repaid when 186 installments of Fifty-four Dollars and Eight Cents ($54.08) plus an additional final payment of Forty Dollars and Eighteen Cents ($40.18), have been made, and any further payments thereafter are not required * * * and would, if so required, be usurious.'

Final allegations were that 183 installments of $54.08 each had been paid, and three more of that amount plus a final one of $40.18 would be paid in full settlement but that Rothman intended to collect 208 payments of $54.08 each and would confess judgment unless he did.

Silver prayed that Rothman be enjoined from collecting more than $9,072 'with interest at the rate of six per cent (6%) per annum properly computed on declining balances' and a declaration that the indebtedness evidenced by the chattel mortgage and note would be fully satisfied by three additional payments of $54.08 each plus a final payment of $40.18.

Rothman demurred to the bill and Judge Prendergast, holding that the provisions for deferred payments of the $9,072 of the purchase price were the legal equivalent of a loan of money and thus subject to the usury laws, overruled the demurrer. Rothman answered, admitting that 183 payments of $54.08 each had been made and alleging that the facts clearly revealed a sale and purchase of personalty not subject to the usury statutes which cover only a loan of or forbearance to collect money and that Silver, having paid but 183 installments, owed 25 more payments.

Silver moved for a summary judgment, and the parties then filed four joint exhibits. The first was an 'Agreement of Sale,' dated January 24, 1962, wherein Silver 'agrees to purchase' from Rothman and Rothman agrees to sell Silver the taxicab and the franchise for $2,000 in cash and a balance of $9,072 'to be secured by a Purchase Money Chattel Mortgage and a Confessed Judgment Note, both of which shall provide for the payment of said balance, plus interest at six per cent (6%) per year, in regular weekly installments over a period of four (4) years, beginning two (2) weeks after approval of the transfer of the taxicab franchise by the Public Service Commission.' The second was a bill of sale of the taxicab and franchise, the third the chattel mortgage, and the fourth the confessed judgment note. The last three were all dated and executed February 7, 1962.

Judge Harris, without opinion, granted Silver's motion for a summary judgment, decreeing the relief prayed in his bill of complaint.

There is no contention that the transaction between Rothman and Silver was other than a bona fide sale and purchase of a taxicab and franchise. The agreement of the parties was integrated in and evidenced by the four documents they executed, and since the execution of three writings dated February 7 was contemplated (explicitly as to the chattel mortgage and confessed judgment note and implicitly as to the bill of sale) by the agreement of sale of January 24 (the difference in time of execution was occasioned by the necessity of obtaining approval by the Public Service Commission of the transfer of the franchise), the four writings are to be read and construed together, as if they were one instrument. Ray v. William G. Eurice & Bros., 201 Md. 115, 128, 93 A.2d 272, and authorities therein cited; Rossi v. Douglas, 203 Md. 190, 198, 100 A.2d 3; Brown v. Fraley, 222 Md. 480, 489, 161 A.2d 128; Wheaton Lanes v. Rinaldi, 236 Md. 525, 531, 204 A.2d 537. See also Ahern v. White, 39 Md. 409, 416, 417; 17A C.J.S. Contracts § 298; 17 C.J.S. Contracts § 58.

The intent and meaning of the writings are to be determined by giving effect to all of their provisions, if it is possible to do so. Sagner v. Glenangus Farms, 234 Md. 156, 167, 198 A.2d 277. If a written contract is susceptible of a clear, unambiguous and definite understanding, as we think the writings before us, read together and considered as a whole, are, its construction is for the court to determine. Keyworth v. Industrial Sales, 241 Md. 453, 456, 217 A.2d 253.

We read the agreement of sale to mean that when the Public Service Commission approved the transfer of the franchise Silver's $2,000 would be delivered out of escrow to Rothman and, simultaneously, there would be executed (a) the bill of sale transferring title to the taxicab and the franchise from Rothman to Silver, (b) the chattel mortgage on the cab and franchise, and (c) the confessed judgment note, the latter two both embodying Silver's promise to pay $9,072 of deferred purchase price and $2,177.28 of interest thereon (calculated at the rate of 6% of $9,072 a year for each of four years) payable in 208 consecutive weekly installments of $54.08 each beginning February 21, 1962. Any possible doubt as to the intended meaning of the phrase 'interest at six per cent (6%) per year' found in the agreement of sale, the chattel mortgage and the note is dispelled by the explanatory words which accompany the phrase in the mortgage and note. The mortgage provides that Silver is to pay $9,072 plus interest at 6% per year 'upon the following terms and conditions * * *. The Mortgagor covenants to repay to the Mortgagee, without demand, the sum of Fifty-four Dollars and Eight Cents ($54.08) per week, commencing February 21st, 1962, and continuing thereafter for two hundred eight (208) consecutive weeks, until the whole principal sum and interest are fully paid.' The note provides for the payment of $9,072, 'with interest at the rate of six per cent (6%) per year, said principal sum and interest to be payable in the following manner:

'The sum of Fifty-four Dollars and Eight Cents ($54.08) per week, payable each and every week hereafter starting on February 21, 1962, and continuing thereafter until the entire principal sum and interest are paid in full * * *.'

We have no doubt that a sale and purchase of the cab and franchise at a cash price of $11,072 and a time price of $13,249.28 were intended and agreed to by Rothman and Silver. This is emphasized by the provision in the...