Springer v. Korotki, 110

• Decision Date: 20 January 1958
• Docket Number: No. 110,110
• Citation: 215 Md. 310,137 A.2d 655
• Parties: Jacob SPRINGER and Maria Springer, his wife, v. Moses KOROTKI and Sonia Korotki, his wife.
• Court: Maryland Court of Appeals

Page 310

215 Md. 310

137 A.2d 655

Jacob SPRINGER and Maria Springer, his wife, v. Moses KOROTKI and Sonia Korotki, his wife.

No. 110.

Court of Appeals of Maryland.

Jan. 20, 1958.

Richard H. Lerch, Baltimore, for appellants.

Arnold Fleischmann, Baltimore (H. Richard Smalkin, A. Frederick Taylor, Smalkin, Martin, Hessian & Taylor, Towson, Abraham Levin, Baltimore, on the brief), for appellees.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT, and HORNEY, JJ.

HAMMOND, Judge.

Springer bought a neighborhood grocery business from his friend, Korotki, and after continuing it for over a year, discovered to his own satisfaction that, in inducing the sale, Korotki, by word and deed, had misrepresented the weekly dollar volume of the store's sales. He promptly filed a bill for rescission. The chancellor decided that the testimony Springer produced was not definite, clear and convincing enough to sustain his charges, and dismissed the bill. Springer appeals.

Before they came to this country, the two had known each other beyond the seas. Korotki came here first. When Springer followed, he looked up Korotki and, for a time, lived with his friend. Desiring to set himself up in business so that he could bring his wife over, he asked about buying the grocery business. He says Korotki told him he used to take in $1,000 a week but that after he bought a laundry he had to divide his time, and the sales fell to about $800 a week. A witness for Springer said Korotki told him that the weekly sales at the time of the sale were 'about $800, sometimes a little over, sometimes a little shorter.'

The parties entered into a written agreement, dated August 9, 1955, wherein for a price of $5,000--which Springer borrowed from a bank and which Korotki says was $500 less than he could have gotten elsewhere, because Springer had once saved his life--the business, good will, trade name and its 'fixture chattels and equipment' were transferred from seller to buyer.

The seller represented and warranted (a) the regular and customary store hours and (b) that the weekly retail sales of the business 'made in the regular, normal and ordinary course of business, for the one week period beginning Tuesday, August 9, 1955, at 5:00 P.M., and ending Monday, August 15, 1955, at 11:00 P.M., shall be absolutely no less than the sum of $650.00 * * *.' It was further agreed and covenanted that: 'In the event that said sales for said one week period, shall not be as represented and warranted herein, then the Vendees, at their option, may terminate this Agreement * * *.'

The store's cash register rang up $742.28 during the test week, and Springer continued to operate the business. Sales began to decline immediately, being $637, $584, $632, $397 (a week of two religious holidays), and $612, for the succeeding five respective weeks. Because of this decline Springer, saying he would take a $2,000 loss and sell out, complained to Korotki, who told him that if he would keep the store for a year, he would help him sell it and that he must not complain but rather tell people business was good and that he made money or he would not otherwise be able to make a sale. Springer then decided to keep the store open much longer than had been customary, particularly on Sundays when, instead of closing at three, he remained open until nine or ten, thus profiting during a time when competitors were closed. In this way he was able to raise the weekly gross sales to some $740 a week on the average. This increase continued until his wife was well along in her first pregnancy, when return was made to the regular hours and sales again declined.

Something over a year after the sale, Springer asked Abram Joyner, who ran a barber shop next door to the grocery, why he had never bought as much since the test week as he had that week. In the course of the conversation that followed Joyner said that Korotki had offered him a 'special' during August of 1955, telling him that he would refund him fifty cents of each dollar spent during that sale. Korotki had told Joyner not 'to go over $10 at a time' and not to tell anyone...