Ryan v. Brady, No. 136

• Court: Court of Special Appeals of Maryland
• Writing for the Court: Before GILBERT; MOORE
• Citation: 366 A.2d 745,34 Md.App. 41
• Decision Date: 02 December 1976
• Docket Number: No. 136
• Parties: William A. K. RYAN v. John J. BRADY et ux. John J. BRADY et ux. v. E. Holmes HAWKINS, Jr., et al. The LATHAM COMPANY et al. (Appellants, Cross-Appellees), v. E. Holmes HAWKINS, Jr., et al. (Appellees, Cross-Appellants).

Page 41

34 Md.App. 41 366 A.2d 745 William A. K. RYAN
v.
John J. BRADY et ux.
John J. BRADY et ux.
v.
E. Holmes HAWKINS, Jr., et al.
The LATHAM COMPANY et al. (Appellants, Cross-Appellees),
v.
E. Holmes HAWKINS, Jr., et al. (Appellees, Cross-Appellants). No. 136. Court of Special Appeals of Maryland. Dec. 2, 1976.

[366 A.2d 746]

Page 42

Philip E. Nuttle, Jr., Easton, with whom were John F. Hall and Nuttle & Hall, Easton, on the brief, for appellant Ryan.

Ernest M. Thompson, Easton, with whom were Charles E. Wheeler and Miller, Wheeler, Thompson & Thompson, Easton, on the brief, for appellees and appellants Brady.

Richard K. White, Jr., Baltimore, with whom were Constable Alexander & Daneker, Baltimore, on the brief, for appellees and cross-appellants E. Holmes Hawkins, Jr., et al.

George J. Goldsborough, Jr., and Roy B. Cowdrey, Jr., Easton, with whom were Goldsborough, French & Collett, Easton, on the

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brief, for appellants, cross-appellees, The Latham Co., et al.

Before GILBERT, C. J., and THOMPSON and MOORE, JJ.

MOORE, Judge.

This controversy arose out of the purchase for $240,000 of a small estate on the waters of Peachblossom Creek, in Talbot County. It is undisputed that the selling broker mistakenly described the western boundary of the property to the appellant purchaser, William A. K. Ryan, prior to the execution of the sales contract. ¹ A little more than one year after the sale, Mr. Ryan brought suit for rescission of the deed and return of the purchase price, or, in the alternative, money damages. Joined as parties defendant were the vendors, John J. Brady and his wife, Carlyle; the selling broker, Jonathan S. Wilford, Jr., and his employer, The Latham Company; and E. Holmes Hawkins, Jr., and his firm, Walsh and Benson, Inc., with whom the vendors had listed the property on an exclusive basis. The Bradys filed third party claims against the individual and corporate realtors and the latter filed crossclaims against each other.

The gravamen of appellant's bill of complaint was that by virtue of the misrepresentation, he understood that he would receive .986 of an acre more than was actually conveyed to him, and that had he known the true location of the westerly boundary, he would not have purchased the property. ² The chancellor, after receiving [366 A.2d 747] extensive testimony and numerous exhibits, filed a comprehensive written opinion in which he found that Mr. Ryan had, by his actions, waived his right to rescission. Damages were also denied, the court sustaining the defense of imputed knowledge of the actual boundaries prior to the execution by Ryan of the sales agreement which had been prepared by his

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own counsel. As an additional ground for the denial of compensation, the court found appellant's proof of damages wholly inadequate. For the reasons stated below, we affirm. I

The property involved contained between four and five acres of land, improved by a ten-year-old, three and one-half bath, five-bedroom house, with approximately 350 feet of frontage on Peachblossom Creek. It was originally listed for sale at $285,000.

In late 1972, appellant contracted to sell his own home and acreage located on Leeds Creek in Talbot County for the sum of $425,000, with transfer of possession to occur on or about June 15, 1973. He then began a search for a new residence, preferably in Talbot County, and during the early part of 1973 he was shown a number of properties by appellee, Jonathan S. Wilford, Jr. The latter was a broker with The Latham Company, the agency through which the appellant had sold his property on Leeds Creek.

In early March 1973, the appellee, John J. Brady, gave an exclusive listing to the realty firm of Walsh and Benson, Inc. for the sale of approximately 50 acres owned by himself and his wife located on Plaindealing Creek. At that time, apparently upon impulse, he added to the listing the words, 'Also house on Peachblossom Creek, 5 BRMS, 3 2/2 BATHS, etc. $285,000 W&B excl.' Broker Wilford subsequently obtained permission from E. Holmes Hawkins, Jr., a broker with Walsh and Benson and a friend of the Bradys, to show Mr. Ryan the Brady property. First, however, Wilford and Hawkins met at the property in order that Wilford could become familiar with the land and improvements. According to Wilford, Hawkins pointed out the boundaries of the property at that time. Hawkins described the western boundary as extending, in a straight line, from an iron pipe located on the northern boundary of a private road, at the north end of the property, southward to a locust post at the southwest terminus near the banks of Peachblossom Creek. When Wilford subsequently showed the property to

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appellant Ryan, he related to Ryan the boundary information which he had received from Hawkins.

Ryan testified, however, that Wilford told him that the western boundary ran in a straight line from a stake lying somewhere between a stump and an oak tree along the southerly edge of the private road to the southwest terminus post. The stake, knowledge of the existence of which was denied by all other witnesses, including Brady's neighbor, Charles Berry, was estimated at trial by appellant's surveyor to be 137 feet west of the true location of the northwest corner of the Brady parcel, as shown by the 1957 recorded plat of survey.

Although Mr. Ryan was dissatisfied with the location of the kitchen in the house and also desired more acreage, he nevertheless decided to purchase the property for $240,000, $45,000 less than the asking price. Upon the acceptance by Brady of his verbal offer, communicated to Brady by Wilford, Ryan instructed his attorney, Philip E. Nuttle, Jr. of the law firm of Nuttle and Hall, to prepare the agreement of sale. As executed, on May 7, 1973, the agreement cantained the following description:

'BEING the same lands or premises shown on a plat of Kastenhuber and Anderson, Surveyors, entitled 'MAP SHOWING A PORTION OF 'OAKLANDS' SURVEYED FOR DWIGHT H. LONGLEY, TALBOT COUNTY, MARYLAND, Scale 100 feet to 1 inch, [366 A.2d 748] March, 1957' which plat is recorded among the Plat Records of Talbot County in Liber No. 11, folio 28.

AND being the same lands which were conveyed unto John J. Brady and Carlyle P. Brady, his wife, both of Talbot County, Maryland by deed dated December 20, 1961 and recorded among the Land Records of Talbot County in Liber 375, folio 341, and subject to the conditions and restrictions contained therein.'

Settlement under the contract took place on June 20, 1973 at the offices of the attorneys, none of the principals being

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present. The deed, executed by the Bradys on June 15, 1973, was also prepared by appellant's attorneys and contained a metes and bounds description, and a specific reference to the plat of survey specified in the agreement of sale. The trial testimony discloses that the actual drafting of the sales agreement and the deed was handled by John F. Hall, Esq., Mr. Nuttle's partner. Mr. Hall conceded that he must have seen a copy of the survey before the sales agreement was executed.

Shorty after Mr. Ryan took possession of the Brady property, in the latter part to July, 1973, he was mowing the grass along what he believed to be the westerly boundary of his property. His neighbor to the west, Charles H. Berry, approached him and goodnaturedly thanked him for mowing the Berry property. A friendly converstation ensued concerning the location of the dividing line between the lots of the two neighbors. One or two days thereafter, Berry delivered to Ryan a copy of the plat of the Berry property and they attempted to locate the four monuments designating the eastern boundary of the Berry property (the same being the western boundary of the Ryan property), but were able to locate only the locust post marking the southeast extremity, and a concrete marker at the northeast corner. Neither Berry nor Ryan could ascertain with precision the location of their common boundary. Mr. Ryan thereafter went on vacation in South Carolina and had no further discussions on the subject with Mr. Berry. Neither, it appears, did Ryan communicate with Mr. Brady nor with his own counsel.

In September 1973, at Berry's request, appellee Brady assisted his former neighbor Berry in an endeavor to discover the west boundary markers of the Ryan property. They found the first and fourth and although they were unable to locate markers two and three, they drove two stakes into the ground at points which they believed represented the dividing line between the two properties. According to Berry, the two stakes were clearly visible from the Ryan home.

Things remained dormant until late March 1974, when

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Ryan received the results of a survey of his property following the execution by him, on March 16, 1974, of a contract for the construction of a swimming pool. The survey was ordered by him to assure the pool's compliance with zoning setback requirements and also to ascertain the correct boundary lines of the property. Ralph A. Porter of Trappe, Maryland, who performed the survey, confirmed that the western boundary was as delineated on Mr. Berry's plat and, perhaps more significantly, that it precisely coincided with the recorded plat of March 1957, referred to in the agreement of sale and the deed between appellee Brady and appellant Ryan. Indeed, Mr. Porter was able to discover all but one of the four markers on the western boundary of the Ryan property. ³ Mr. Porter testified that the total acreage of the parcel was 4.270 acres and that the quantity of land between the [366 A.2d 749] western line, as Ryan thought it to be, and the actual location of the westerly line was 0.986 acres. The distance from the side door of the Ryan house to the actual western boundary line was 53.39 feet, whereas the distance to Mr. Ryan's imaginary western boundary line was 180 feet. The witness was not asked if he had determined the difference...