Stofberg v. Levland, Inc.

• Decision Date: 04 June 1957
• Docket Number: No. 224,224
• Citation: 132 A.2d 122,213 Md. 477
• Parties: Robert STOFBERG v. LEVLAND, Inc., etc.
• Court: Maryland Court of Appeals

Page 477

213 Md. 477

132 A.2d 122

Robert STOFBERG v. LEVLAND, Inc., etc.

No. 224.

Court of Appeals of Maryland.

June 4, 1957.

Albert G. Aaron, Baltimore, for appellant.

Isidor Roman, Baltimore (Louis J. Sagner and J. J. Kent, Baltimore, on the brief), for appellee.

Before COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ., and D. K. McLAUGHLIN, Specially Assigned Judge.

D. K. McLAUGHLIN, Specially Assigned Judge.

In July, 1956, a deed of trust for the benefit of creditors was executed by Levland, Inc., trading as Eddie's Super Market, to certain trustees. The Circuit Court of Baltimore City assumed jurisdiction of the trust and authorized a public sale of the corporate assets to be held on August 1, 1956, at the business premises located at No. 5437 Reisterstown Road in Baltimore. The appellant says he had no knowledge of this sale until the morning of August 1. While having breakfast across the street from the sale site he noticed a sign advertising the sale, saw people going into the market and decided to attend. The assets were offered as an entirety and by detail bid. An entirety bid of $21,000 made by appellant proved to be the highest so he gave his check for $5,000 to the auctioneer, promising to pay the balance later.

Thereafter appellant refused to pay the balance of $16,000. He contended that statements had been made by the auctioneer at the sale which gave him the impression that the premises at No. 5437 Reisterstown Road were under lease but that a lease for premises numbered 5433, and in the same shopping center, could be negotiated. He states such statements gave him added incentive to bid and made the assets more valuable. Appellant says he was unable to negotiate a lease at No. 5433 and was justified in not completing his agreement.

When the trustees and their counsel learned of appellant's refusal to pay the balance due they acted with dispatch and on August 7 notified appellant by registered mail that the trustees 'would sell, at his risk and expense, the assets of the trust estate * * * unless payment of the balance were made by August 10, 1956'. On August 9 counsel for trustees presented to the court a petition setting forth the refusal of appellant to pay the balance due and the court passed an order directing a re-sale of the assets at the risk and expense of appellant. The order did not provide for service of a copy thereof on appellant nor give him an opportunity therein to show cause why the re-sale should not be made. It was in fact a final order. However, a copy of the petition and order was sent by registered mail to appellant.

Appellant promptly consulted counsel and on August 14 his attorney mailed to counsel for trustees a copy of a petition signed and sworn to by appellant, containing an unexecuted Order Nisi, and plainly indicating it was to be filed in the trust estate court proceedings. This paper was captioned 'Petition to vacate the Order of the Circuit Court of Bltimore City dated and passed August 9, 1956'. For some reason which does not appear in the briefs or the record of this case, appellant's counsel never filed this petition. Appellee's brief states that appellant's counsel called a meeting in Judge Warnken's chambers on August 15, and following and as a result of that conference, the appellant elected and determined not to file his said petition. Appellant makes no contention that he was misled or lulled into any false security as a result of the conference. He makes no reference whatsoever to this petition and conference so we can only conclude that he would prefer that these happenings be forgotten.

The re-sale was held on August 20. Appellant was present, made an entirety bid of $15,000, depositing his check in such amount with the auctioneer. The assets were offered in detail and such sale produced $19,000.80, so appellant's check was returned.

On August 28 appellant filed a petition asking that the first sale be declared null and void and his deposit of $5,000 returned. Later an amended petition sought the same relief. Trustees answered and after a hearing the Chancellor below dismissed the petition. This appeal is from that decision.

Appellant seeks relief here by arguing: (1) the order to resell was not legally served on him and did not provide him an opportunity to show cause why the order should not become final; (2) that a judicial sale is not valid which is neither reported by the trustees nor confirmed by the court prior to a re-sale of the same assets; (3) a judicial sale should be set aside when, upon timely objection, the successful bidder proves his bid resulted from a mistake induced by an innocent misrepresentation made by an auctioneer.

The authority of the court to order a resale is not questioned. Code 1951, Art. 16, sec. 260. The complaint of appellant relates to the procedural method used to bring this about. The case of Schaefer v. O'Brien, 49 Md. 253, is the main prop of appellant to support his plea for reversal under his first argument. This case holds that where sales have been reported and the purchaser refuses to comply with the terms thereof, the court may order that cause be shown why the terms of sale are not complied with and the court after considering the circumstances may ratify or set aside the sale. 'But if the sale be ratified, and the party still fail(s) to comply, the court may then proceed, in a summary way, by order nisi and final order, to direct a re-sale of...