Stern v. Shapiro

• Decision Date: 27 June 1921
• Docket Number: 30.
• Citation: Stern v. Shapiro, 138 Md. 615, 114 A. 587 (Md. 1921)
• Parties: STERN v. SHAPIRO.
• Court: Maryland Court of Appeals

114 A. 587

138 Md. 615

STERN v. SHAPIRO.

No. 30.

Court of Appeals of Maryland

June 27, 1921

Appeal from Circuit Court of Baltimore City; Robert F. Stanton Judge.

Suit for specific performance by Isaac Shapiro against Sophia Stern.Decree for complainant, and defendant appeals.Reversed, and bill dismissed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, URNER, STOCKBRIDGE and OFFUTT, JJ.

Benjamin Rosenheim and Randolph Barton, Jr., both of Baltimore, for appellant.

Israel S. Gomborov and Edw. J. Colgan, Jr., both of Baltimore, for appellee.

OFFUTT J.

This is an appeal from a decree of the circuit court of Baltimore City ordering Mrs. Sophia Stern, the appellant, to specifically perform a contract for the sale of a house identified as No. 1039 North Eutaw street, Baltimore, to Isaac Shapiro, the appellee, for $3,200.

At the time the contract was made Mrs. Stern lived in the house with two of her daughters, and was then and for some time had been in bad health.For that and other reasons she was herself rather averse to selling it, but was persuaded by her daughter Marie, who disliked the neighborhood, to agree to dispose of it.

Under these circumstancesIsaac Shapiro made an offer to buy it for $3,200, which offer the appellant accepted, and the terms and conditions of the sale were embodied in the following written memorandum of sale signed by the parties:

"Balto, 4/11/18.Rec'd of Mr. Isaac Shapiro the sum of twenty-five dollars deposit on house 1039 N. Eutaw in fee simple, sale to be concluded within 30 days of deposit otherwise the deposit to be forfeited by Mr. I. Shapiro.Mrs. Sophia Stern is to be given one month time to remain in the house after settlement free of rent (her apt.).Mrs. Sophia Stern, Sophia Stern.Sale price of house, $3,200.00.$3,200.00 net, no fees.Marie Stern.Isaac Shapiro."

This contract was written by Marie Stern, who was present and took an active part in the interview at which the contract was signed and executed by Mrs. Stern at her home on April 4, 1918.The next day Miss Marie Stern took the contract to Mr. John M. Requardt, a member of the Baltimore City bar, and asked him to represent Mrs. Stern's interests under it.Testifying as to what took place on that occasion, she said:

"Yes; I gave him the contract.Mr. Requardt reminded me the other day that I made the remark to him that I did not see how Mr. Shapiro is going to pay for the house, and he said that he had 30 days' time in which to pay for it.Two days after that Mr. Shapiro came in, and I told him the deed was at Mr. Requardt's office, and when I was up at Mr. Requardt's office I said: 'How about Mother?You know Mother cannot come here.She is not allowed to go anywhere.How will it do about the signing of the deed?'He said: 'I will tell you what, Miss Marie; when it comes up I will notify you, and we will send the deed down, with the notary public to your house for your mother to sign.'He said, 'Yes.'Mr. Requardt always did.I said, 'All right; let me know.'He said, 'All right; let him notify us beforehand."'

At or about the same time Mr. Shapiro referred his interest in the contract to Mr. Israel S. Gomborov, his attorney.On May 21, 1918, after the time fixed in the contract for its performance had expired, Mr. Gomborov delivered to Mr. Requardt a check for the balance of the purchase money due on the house, which Mr. Requardt accepted, and at the same time gave Mr. Gomborov a letter to Mrs. Stern in which he explained the amount of the check and requested Mrs. Stern to execute a deed for the property.This she refused to do on the ground that, as the property had not been paid for within the time limited by the contract, the contract was under its terms at an end.The vendee, however, claimed that he had been ready before the expiration of the time limited in the contract to perform its terms, but that he had been misled by Miss Marie Stern, the vendor's agent and by the vendor's attorney, into believing that it was not convenient to the vendor to close the transaction until the time it actually was consummated by the delivery of a check to the vendor's attorney, and he further insisted that in accepting the check Mr. Requardt was acting as the vendor's agent, and that in consequence she is estopped by his action from refusing to specifically perform the contract.But in reply to these contentions the vendor asserts that, while Mr. Requardt was her attorney to see that the contract was performed, he was not her agent authorized to vary it, and that, as his acceptance of the check for the balance of the purchase money was after the time for performance of the contract had expired, he had not the authority to change its terms by extending the time for its performance, and that his act in doing so was, in the absence of her assent thereto, not binding upon her, and she also denied that the vendee was misled into believing that she had ever agreed to any modification of the terms of the agreement as to time within which it was to be performed.

The evidence in regard to these divergent theories is vague and conflicting, and its support can be best stated by quoting briefly from the testimony of the several witnesses.

Isaac Shapiro, the appellee, testified that he saw Miss Stern twice after the execution of the contract of sale.The first occasion, he said, was about five days after the date of the contract, when he called at her home to obtain the deed under which her mother acquired the property, and she then told him that Mr. John M. Requardt, their attorney, had the deed; that about two weeks later he again saw her at her home, and he then asked her when would be a suitable day to settle the property, and she told him:

'Everything is left with Mr. Requardt.Whenever he will send for us, because my mother might be sick, and whenever he sends for uswe will sign the deed.Mr. Requardt is intrusted to receive the money.We trust everything to Mr. Requardt."

The witness, continuing, said he informed his attorney of this conversation, and that he had said, "That is all right; I can get along with Mr. Requardt; I have had a number of conversations with him, and we always get along nicely," and that he then left the matter with Mr. Gomborov and Mr. Requardt.He further said that on the occasions referred to he dealt with the daughter because "she was always representing the business affairs," and he did not see Mrs. Stern at all after the contract was signed.The witness further testified:

"I left it to Mr. Gomborov and Mr. John Requardt to arrange the time of settlement.I was ready with the mortgage.Mr. Gomborov was ready with the insurance, and everything was ready, and when the time came there was set a day of settlement to settle the property.Mr. Gomborov handed over the check to Mr. Requardt.Mr. Requardt wrote a letter to Mrs. Stern and sent over a notary public direct to their house, stating the fact that everything is settled and please to sign the deed to the property and have it acknowledged before the notary public."(The "day of settlement" referred to by the witness appears to have been the 21st day of May.)

The witness further said that he was "ready within 10 or 12 days" after he purchased the property, and was able at any time to pay for it.On cross-examination he testified that he was continually importuned by Mrs. Stern and her daughter to sell the property for them, and that Mrs. Stern had spoken to him about it only a day or so before the contract was signed.When asked if he had not telephoned to the Sterns to inquire if they wanted to sell the house, he replied:

"I did not telephone; I did not have to, because she told me personally before that time if I could get her a purchaser she would sell it."

But later on, when asked the same question, he said:

"I don't remember telephoning.If I did, maybe I did, but I don't remember it."

He further said that he had gone to Mr. Requardt's office for the deed about "two days after signing this contract," and that he had arranged with a building and loan association to advance money on the property.He was then asked:

"Will you say that you or Mr. Gomborov, or somebody on your behalf offered to pay Mrs. Stern the purchase money for this property within the time specified in that contract, namely one month?"

To which he answered:

"When I came there it was about one week before, about ten days before, the settlement.I said, 'Our building association is ready when you are ready.'They said, 'Whenever Requardt arranges the hour, the time."'

It was, however, admitted that the tender was not made within the time specified.He was then asked how often he had seen Mrs. Stern after the execution of the contract, and at first said:

"Only once; I came three days after asking for the deed, and then she referred me to Mr. Requardt."

He was then asked:

"And that was the only time you saw Mrs. Stern after the contract?"

And he answered:

"Twice I seen her.Another time was two weeks later, to ask her when they will be ready."

He amended this statement by saying that these interviews were not with Mrs. Stern at all, but with her daughter Marie, and explained the fact that he dealt with the daughter instead of the mother by saying:

"When I saw Mrs. Stern in other instances she referred me to her daughter, that she does her business."

Mr. Israel S. Gomborov, the appellee's attorney, testified that Shapiro had asked him to search the title to the property, but he did not recall just when that request was made.When asked about that, he said:

"I do not know the date.I simply judge from the fact that I ordered the lien sheet and the lien sheet is dated April 20, 1919, 1039 North Eutaw street, so I presume that I must have started

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