Scholtz v. Philbin

• Decision Date: 03 April 1929
• Docket Number: 48.
• Citation: 145 A. 487,157 Md. 196
• Parties: SCHOLTZ v. PHILBIN.
• Court: Maryland Court of Appeals

145 A. 487

157 Md. 196

SCHOLTZ v. PHILBIN.

No. 48.

Court of Appeals of Maryland

April 3, 1929

Appeal from Circuit Court No. 2 of Baltimore City; Joseph N. Ulman Judge.

Specific performance suit by Honora Philbin against Karl A. M Scholtz. From a decree for plaintiff, defendant appeals. Reversed and remanded.

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

Louis J. Jira and Paul R. Kach, both of Baltimore, for appellant.

Walter C. Mylander, of Baltimore (Nathan Patz, of Baltimore, on the brief), for appellee.

BOND C.J.

This appeal is from the decree of a court of equity enforcing the appellant's contract to purchase real property. The appellant was the successful bidder at an auction sale of property known as 334 St. Paul street, Baltimore City, and a title insurance company employed by him reported that discrepancies were found between the titles lines and the lines of the improvements, that there was a small encroachment on an alley in the rear, and that the rights in party walls were not certain; and insurance in respect to these details was refused. Discussion followed with agents of the owners, new surveys were made, and a confirmatory deed was procured from an adjoining owner. But at about the time this work was finished the appellant, stating that he had bought the property on speculation, and was prejudiced by the delay, declined to complete the purchase. Testimony was taken on the supposed defects in title, and we think removed all substantial objections, but this need not be dwelt on, as the objections now urged on appeal are concerned only with supposed insufficiencies in the contract itself.

The objections now are that the contract is unenforceable because an auctioneer's memorandum made of it does not contain the name of the vendor, as required by the Statute of Frauds and because the contract stated in it is too uncertain in its terms to be enforced specifically. This auctioneer's memorandum is signed by the appellant as purchaser, and a copy of the advertisement of the sale affixed to it contains the names of real estate agents making the sale and the name of the auctioneer. Nowhere does the name of the owner appear. And it is settled that to satisfy the requirement of the Statute of Frauds, there must be some writing showing who are the contracting parties. Thomas v. G., B., S. Brewing Co., 102 Md. 417, 425, 62 A. 633. But there are several sufficient replies to the objection. It seems sufficient to say that in the case of Batturs v. Sellers, 5 Har. & J. 117, 9 Am. Dec. 492, cited by the appellant, it was held that if a sale is made by commission merchants, and the bill of parcels is made out in the names of the commission merchants as vendors, it is sufficient to gratify the Statute of Frauds in that respect even though the name of their principal does not appear. And that seems to be a decision of the same point. Moreover, the agents in this instance were again named in a letter written to them by the appellant acknowledging the purchase, and this time they were described as "agents for Honora Philbin," the principal. And that would have supplied the name needed if it had been necessary to the sufficiency of the memorandum. Drury v. Young, 58 Md. 546, 554, 42 Am. Rep. 343; Banks v. Harris Mfg. Co. (C. C.) 20 F. 668.

The uncertainty found in the terms of the contract is in a statement that payments shall be made, "One third cash balance in 1, 2 or 3 years at 6%, or all cash." It is a...