Tolchester Beach Improvement Co. of Kent County v. Boyd

• Decision Date: 05 November 1931
• Docket Number: No. 8.,8.
• Citation: 156 A. 795
• Parties: TOLCHESTER BEACH IMPROVEMENT CO. OF KENT COUNTY v. BOYD et al.
• Court: Maryland Court of Appeals

156 A. 795

TOLCHESTER BEACHIMPROVEMENT CO.OF KENT COUNTY

v. BOYD et al.

No. 8.

Court of Appeals of Maryland.

Nov. 5, 1931.

Appeal from Circuit Court No. 2 of Baltimore City; George A. Solter, Judge.

Suit by the Tolchester Beach Improvement Company of Kent County against Charles P. Boyd and others. From an adverse decree, complainant appeals.

Decree reversed and cause remanded, with directions.

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

James W. Chapman, Jr., of Baltimore, Md. for appellant.

Edward A. Smith, of Baltimore (Joshua Clayton, of Elkton, and Cook & Markell, of Baltimore, on the brief), for appellees.

ADKINS, J.

This is an appeal from a decree dismissing the bill of complaint of the appellant for specific performance of a contract of purchase of wharf property on the Sassafras river at Fredericktown in Cecil county.

The history of the transaction, briefly, is as follows:

The appellees, Charles P. Boyd and H. M. Coale, residents of the state of Pennsylvania, were members of a yachting club called "Tockwogh Club," and desired to purchase for the uses of the members of said club suitable property on the Sassafras river.

Mr. Coale testified that he and a group of his friends were looking for a location; that he had anchored frequently in the neighborhood of Fredericktown and Georgetown, and, during the course of time, had seen the Tolchester Company property; that he telephoned Mr. Hudson, president of the Tolchester Beach Improvement Company, and asked him if the property was for lease; he said it was not, but they would sell it for $10,000; that witness asked him what approximate acreage was there; he said, an acre and a half; that witness drove to Chestertown, one or two days later, and on the way stopped off and looked at the property and wrote to Mr. Hudson on February 4, 1929. immediately following that trip, and requested him to send witness "a sketch or blue-print showing just how the one and a half acre property is bounded"; that witness also asked for an appointment some time during the week of February 11th to discuss the matter in person. The witness admitted he knew before signing the contract that there wasn't an acre and a half in the property.

On February 7th, Hudson replied and inclosed "a rough sketch of our Fredericktown wharf property." In that letter he informed Coale that there were several parties "negotiating for the property and we think it a fair price we are asking for it, situated as it is close to the State Road." The "rough sketch" was a copy made by Hudson from a drawing that was furnished the company at the time it purchased the property. This sketch indicated a frontage of 183 feet on the county road leading from Cecilton to Georgetown, a depth at about the centre of 150 feet, and at the end next to the state road bridge connecting Kent and Cecil counties, a frontage of 50 feet. If the drawing had been to scale it would have indicated a frontage of about 50 feet at the southwesterly and next to the Standard Oil property. But it did not purport to be accurate, but only a "rough sketch." After the receipt of this sketch, Boyd and Coale called at Hudson's office. The date of this interview was February 11th.

Boyd testified that on this occasion Hudson told him the property contained about an acre and a half, "and he said it ran, roughly speaking, 383 feet from the bridge along the road, describing that you turn off to the right from the main road, and that was about all he told me about the property excepting there was sufficient water for a dock." "We told Mr. Hudson that we wanted the property for a yacht club and we would have to have a suitable—sufficient ground to build garages and enlarge the dock and any other buildings we might find necessary to put on."

On cross-examination, Boyd admitted he knew the property they were buying from the Tolchester Company began at the bridge and came down toward the Standard Oil Company; that before the first interview with Hudson he and Coale went on the property, saw the wharf buildings and the Standard Oil Company property; that they saw the land and walked over it; that he had a survey made of it on March 4th and then figured out the contents, and found it contained less than half an acer that nothing was said about this to Hudson or the company after finding it out, until April 11th; that in this period between March 4th and April 11th application was made by witness and his associates to the War Department for permission to erect piers and other improvements to which was attached a plan for the docks.

In passing, it should be noted that these plans were made and sent for approval to the War Department after full knowledge by the applicants of the shortage due to the encroachment by the state road bridge on the property of the Tolchester Company. At the interview of February 11th, Boyd and Coale were told by Hudson that it would be necessary for them to act promptly if they wanted the property, as there were other parties interested in buying it. Notice of acceptance was promptly given by the appellee, and, in a day or two, a letter was sent with a check for $500 on account of purchase money, and there followed promptly a form of agreement prepared by counsel for appellees in which the property was described "All that certain lot or piece of ground with buildings and improvements thereon erected, situate on the south side of the Fredericktown, Maryland Road on the west side of the Sassafras River in Cecil County, Maryland, extending at right angles to the said Fredericktown, Maryland Road about three hundred and eighty three (383) feet along a public highway at right angles to the said Fredericktown, Maryland Road and extending from said Road to the low water mark of the Sassafras River together with the wharf of the said party of the first part and all riparian rights, a complete description to be made by a survey of the said property before settlement. * * *" On receipt of this form of agreement, Hudson had a different form prepared in which the description of the property was by metes and bounds and the distances were given in perches instead of feet, the description being the same as in the deed by which the Tolchester Company took title. This agreement was sent to Boyd by Hudson with a letter stating that the writer thought it would be "better for you than the one that you sent me as it covers all the property that the company holds at Fredericktown, Md," and giving reference to the title deed of the company. This agreement was executed by all the parties as of February 13, 1920. In this agreement, the line along the Cecilton-Frederlck Road was given as 22 8/10 perches. This, of course, is 376 2/10 feet, whereas the rough sketch furnished by Hudson indicated 383 feet: and "about 383 feet" was called for in the form of agreement tendered by the appellees. On March 4th appellees had a survey made of the property. This survey showed only 352 3/10 feet, in said line, which is accounted for by the fact that after the company acquired the property the state road bridge encroached upon it. This encroachment varies from about 24 feet at the Cecilton road to 40 feet at the shore line. In other respects, the survey agrees with the description in the agreement.

After this, survey plans for piers were submitted by appellees to the War Department for approval. On hearing of the proposed plans, some fishermen living at Fredericktown filed objections with the county commissioners of Cecil county on the ground that the proposed piers would cut off access from the water to the shore on the company's property where fishermen had been accustomed to landing, and the Commissioners filed a protest with the War Department. On April 11th, two days before the expiration of the 60 days allowed in the agreement for the payment of the balance of the purchase money, Boyd accompanied by a Mr. Collins, Commodore of the Yacht Club, called at Hudson's office. Hudson called Mr. Chapman, the company's attorney, over the phone and requested him to come to the office. There is some...