Spear v. Orendorf

• Court: Maryland Supreme Court
• Writing for the Court: Bowie, C.J., delivered the opinion of the court:
• Citation: Spear v. Orendorf, 26 Md. 37 (Md. 1866)
• Decision Date: 22 November 1866
• Parties: P. FORNEY SPEAR v. SAMUEL ORENDORF.

26 Md. 37

P. FORNEY SPEAR v. SAMUEL ORENDORF.

Court of Appeals of Maryland

November 22, 1866

The allegation of the complainant "that he paid the increased rent of $1,500 as part and parcel of the agreement aforesaid, and in performance and consideration thereof, and not otherwise," was equivalent to an averment "that the landlord accepted the additional rent upon the foot of the agreement," which has been held sufficient to require an answer.

Appeal from the Circuit Court of Baltimore City:

This is an appeal from an order of the court below, (Alexander, J.,) granting an injunction. The allegations of the bill and the facts of the case are stated in the opinion of this court.

The cause was argued before BOWIE, C.J., and BARTOL, GOLDSBOROUGH and COCHRAN, JJ.

T. B Horwitz, for the appellant:

1st. The bill and exhibits filed therewith do not present a case in which a Court of Equity will decree specific performance and therefore the court below was clearly in error in granting the injunction. "As the writ of injunction was granted as auxiliary to the principal relief sought for by the complainant, it follows that the order granting the injunction cannot be maintained, unless the case presented by the bill is of that character which would authorize a Court of Equity, in the exercise of its extraordinary jurisdiction to enforce the contract. Geiger v. Green, 4 Gill 475.

The pretended agreement is so vague and so uncertain that no specific performance of it could be decreed by a Court of Equity.

The complainant has not even alleged any agreement whatever, for it is submitted that it is impossible for any court to say, under the inconsistent allegations of the bill, what term he claims. Was the court below called upon to give the appellee the right to occupy the premises in question "another year," or "one or two years," or "two or three years after the first year?" "If an agreement is deficient in either fairness, justice or certainty, its specific execution will not be decreed, and hence a stronger case is required on the part of the plaintiff asking a decree for the specific performance of a contract than is required by him who resists such a decree." Tyson v. Watts, 1 Md. Ch. 15. Small v. Owings, Ib. 370.

Smith v. Crandall, 20 Md. 501. Stoddert v. Bowie, 5 Md. 35. Shepherd v. Bevin, 9 Gill, 43. Allen v. Burke, 2 Md. Ch. 538, 539.

To enforce the specific performance of a contract so vague, uncertain, equivocal and indefinite in its terms, as that set up by the appellee, would be to make a contract for the parties, which a Court of Equity has "no authority to do." Stoddert v. Bowie, 5 Md. 28. Smith v. Crandall, 20 Md. 500. Myers v. Forbes, 24 Md. 598.

2nd. This alleged agreement lacks the essential ingredient of mutuality. "The contract must be mutual, otherwise equity will not execute it, that is, both parties must have, by the agreement, a right to compel a specific performance according to the advantage which it might be supposed they were to derive from it." "And it is now established, that unless there is to be found in the contract this essential ingredient of mutuality, a Court of Equity will not compel its specific execution." Geiger v. Green, 4 Md. 476, 477. Tyson v. Watts, 1 Md. Ch. 16. Duvall v. Myers, 2 Md. Ch. 404, 405.

Upon examining said agreement it will be found to contain, not only the clause giving said Orendorf the privilege of occupying said premises "two or three years from the date thereof," but the unreasonable, inequitable and absurd clause requiring the appellant to repair said premises "to suit the comforts and conveniences" of said Orendorf, an agreement into which the appellant never dreamed of entering. The appellee having been notified to quit said premises at the end of the year of his tenancy, and finding that it was ""desirable to him to continue in the occupancy of the said warehouse," at the same rent, rents having greatly increased during the year 1865, he determined then to exercise what he calls his "privilege of occupying the premises in question another year," or "one or two years." And it is this pretended agreement, giving the appellee the privilege of occupying said premises ""another year" or "one or two years," or "two or three years, in his discretion," and of having the same """repaired to suit the comforts and conveniences" of the appellee, that he now asks a Court of Equity to decree a specific performance of.

"No rule is better established than that every agreement to merit the interposition of a Court of Equity in its favor, must be fair, just, reasonable, bona fide, certain in all its parts, mutual, etc., and if any of these ingredients are wanting, Courts of Equity will not decree a specific performance." Stoddert v. Bowie, 5 Md. 35. Mundorf v. Kilbourn, 4 Md. 464. Smith v. Crandall, 20 Md. 500. Geiger v. Green, 4 Gill, 475, 477.

3rd. This pretended agreement presents a case clearly within the statute of frauds, and in order to take it out of the operation of the statute, it is incumbent on the appellee to show, not only exactly what the contract is that is sought to be enforced, and that it possesses the "essential ingredient of mutuality," but he must also show a clear part performance of the "identical contract" set up, and that it would be a fraud upon the part of the appellant to refuse to perform his part of the agreement, and that he took possession of the property in question under the agreement, and solely with the view to the agreement being performed. Just the contrary appears by the bill, which alleges that he "continued in possession of the premises" after his lease had expired; that he had occupied the same for several years past, and that for that reason it "was desirable to him to continue in the occupancy" of the same. Small v. Owings, 1 Md. Ch. 369. Hamilton v. Jones, 3 G. & J. 131, 132. Mundorf v. Kilbourn, 4 Md. 462. Smith v. Crandal, 20 Md. 501.

4th. Had the alleged agreement been signed by the appellant, and not by the appellee, it would even then have been an "inchoate instrument," and its execution could not have been enforced in equity. Howard v. Carpenter, 11 Md. 276, 277.

5th. The alleged agreement being for a less term than seven years, it is not necessary to the protection of the appellee in any right that he may possess thereunder, that the same should be in writing. 1 Code, Art. 24, sec. 21.

All the pretended defenses of the appellee to the proceedings instituted by the appellant to obtain possession of the premises in question, could have been fully availed of at law. The court below had therefore no jurisdiction in the premises, and least of all was there any ground for an injunction.

S. T. Wallis and John H. Thomas, for the appellee:

1. The appellee insists that the bill shows a case entitling him to specific performance, and that the injunction was properly incident thereto, upon well established principles of equity. Geiger v. Green, 4 Gill, 475. Allen v. Burke, 2 Md. Ch. 534. Brennan v. Bolton, 2 Drury & Warren, 359. Wills v. Stradling, 3 Ves. 381-2. 1 Story Eq. Jur. sec. 763.

2. That the case of the appellee could not be set up in defense at law, the agreement having been not a verbal lease, but a verbal agreement to execute a written lease.

The appellee will further contend, under the second point: That the parol agreement set up would not have sustained at law the term claimed, the statute of frauds applying only in the second section to leases for three years from the date of the lease. Brown on Stat. Frauds, 33, 34. 2 Platt on Leases, 4. 2 Washb. on Real Property, 391.

3. That the lease tendered by Spear, shows that the appellee was entitled to a two-years lease, at least, under the agreement, which covers the case.

Bowie C.J., delivered the opinion of the court:

The appellant having instituted summary proceedings against the appellee, to remove him from premises which he claimed to hold under a parol contract for a lease, the latter filed his bill for specific performance, and as auxiliary thereto, prayed for an injunction, from the order granting which this appeal is taken.

The bill alleges that the appellee, being in possession from the 1st of February, 1864, to 1st of February, 1865, under a previous letting at a reduced rent, it was (towards the close of the term) agreed, between the appellant and appellee, that if the latter would pay the former the increased rent of $1,500 per...