Schapiro v. Chapin

• Decision Date: 24 June 1930
• Docket Number: 40.
• Parties: SCHAPIRO ET AL. v. CHAPIN ET AL.
• Court: Maryland Court of Appeals

151 A. 44

159 Md. 418

SCHAPIRO ET AL. v. CHAPIN ET AL.

No. 40.

Court of Appeals of Maryland

June 24, 1930

Appeal from Baltimore City Court; Joseph N. Ulman, Judge.

Action by Frederick J. Chapin and others against Morris Schapiro and wife. Judgment for plaintiffs, and defendants appeal.

Reversed and new trial awarded.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

Edward J. Colgan, Jr., of Baltimore (Karr & Colgan and Francis Key Murray, all of Baltimore, on the brief), for appellants.

Reuben Oppenheimer and Eli Frank, Jr., both of Baltimore (Emory Beeuwkes, Skeen & Oppenheimer, of Baltimore, on the brief), for appellees.

SLOAN J.

On October 28, 1927, Herbert E. French, of Washington, D. C., and Morris Schapiro (appellant), of Baltimore, entered into a written agreement for the purchase by the former from the latter of a farm of 1,250 acres in Howard county, Md., and the personal property thereon, in consideration of the payment by French to Schapiro of $65,000 cash and the conveyance of five improved lots in Washington, subject to certain incumbrances thereon. One of the parcels of Washington property to be conveyed to Schapiro was "the premises known as 1404 N. Capitol Street, * * * same being subject to a first deed of trust in the amount of $5,000, being a Building and Loan Association Loan payable at the rate of $65.00 per month until paid and a second deed of trust in the amount of $1,900 payable at the rate of $45.00 per month with interest at 6% per annum until paid--said loan to run until paid."

The agreement, which was signed by H. E. French and Mabel P. French, his wife, and Morris Schapiro and Rebecca Schapiro, his wife, provided: "That settlement and exchange of the above mentioned properties must be consummated within thirty days hereof, or as soon thereafter as titles are ready, adjustment to be made as of Nov. 1st, 1927. That Eugene H. Taggart, Inc., Bought (should be Brodt) Realty Co. and F. J. Chapin are representing the contracting parties hereto and that the regular rate of commission established by the Real Estate Board of Washington, D. C. will be paid by both parties hereto, with their full consent as to any arrangement as to pooling and dividing said commission with the brokers associated in the transaction."

Immediately following the signatures of the owners is this rider or addendum:

" It is understood that the brokers above mentioned are to accept title, as conveyed of 1404 N. Capitol Street as full commissions rendered unto the party of the second part, (Schapiro). We hereby ratify above.

E. H. Taggart

Brodt Realty Co.

F. M. (?) Brodt President

F. J. Chapin."

A printed form of contract was used, and the portions of the contract herein italicized were either typewritten or written by hand. The signatures were written by the parties interested.

The suit was in assumpsit on the six common or money counts, and two special counts (7 and 8) setting up the appellees' view of their rights, that it is a contract for the sale of real estate to a purchaser procured by a broker "and the person so procured is accepted as such by the employer" on "terms acceptable to the employer and such contract is accepted by the employer and signed by him," whereby the agent is entitled to his commissions under the provisions of the Code, art. 2, § 17, Act of 1910, c. 178, and the court in its rulings on the demurrers evidently agreed with the appellees' contention.

The appellants craved oyer of the agreement, which was complied with by the appellees. The appellants then demurred to the declaration and each count thereof, and the demurrer was overruled. When the contract was filed it became part and parcel of the declaration as if profert had been first made ( State, Use of Kelley, v. Wilson, 107 Md. 132, 68 A. 609; Tucker v. State, 11 Md. 322; Birckhead v. Saunders, 2 Har. & G. 82; Poe on Pleading [[[Tiffany Ed.] § 768; 49 C.J. 609); and, if the agreement declared on in the seventh and eighth counts "is not the agreement given on oyer, either according to its tenor, or true intent and meaning," then the demurrer should have been sustained as to those counts. Anderson v. Critcher, 11 Gill & J. 450, 455, 37 Am. Dec. 72; State v. Wilson, supra; Poe on Pleading, § 713.

The declaration ignores the addendum or rider signed by the brokers, and merely alleges in the seventh count that the appellees, upon the execution of the contract by the appellants, were entitled to "reasonable compensation," and, in the eighth count, "that in the said contract the defendants agreed to pay commissions to the plaintiffs in consideration of their said services and of obtaining the said purchaser (French) for the said farm", and then charges that the defendants have failed and refused to pay any of the commissions claimed under the contract.

The first difficulty we encounter is that there are two inconsistent provisions for the payment of brokers' commissions, and, if they cannot be reconciled, then we must decide which of them prevails. The printed portion of the contract states that the appelles "are representing the contracting parties hereto (French and Schapiro) and that the regular rate of commission * * * will be paid by both parties hereto (French and Schapiro)." By the typewritten addendum covering the same subject-matter (commissions) "It is understood that the brokers * * * are to accept the title, as conveyed, of 1404 N. Capitol Street as full commissions for full services rendered unto the Party of the Second Part (Schapiro)," the equity in the property so to be conveyed being estimated at $8,100, which was the amount of the verdict on which judgment was entered. In the printed portion we have French and Schapiro agreeing to pay the regular rate of commissions established by the real estate board of Washington, and, in the addendum or rider, the brokers agree to accept from Schapiro alone the title to 1404 N. Capitol Street "as full commissions for full services." If the printed portion of the contract is to be accepted, and we are to regard the rider as merely substituting property for such cash commissions as are customarily paid in Washington, the appellees would be entitled to recover under the provisions of the Act of 1910, c. 178, and the declaration would be good. But this is not our construction of the contract, and, in the view of this court, the two provisions for commissions are not reconcilable, and, when the rider was added, it canceled the printed provision as to Schapiro and was so intended; else, why was it written and added to the printed form of contract?

In Williston on Contracts, § 622, it is said that: "Where part of the contract is in writing and part is in printing the writing will be given effect if there is repugnancy between the two portions of the instruments." And in Brantly on Contracts, (2d Ed.) p. 292: "When the contract is partly written and there is a conflict between the two parts, that which is written will prevail over the printed part because it is presumed to have received closer attention." And it might be added: "Because as printed it was not satisfactory to the party to be charged." It is apparent that the printed form of contract was furnished by Eugene H. Taggart, Inc., its name being printed in capital...