Vincenti v. Kammer

• Decision Date: 15 January 1948
• Docket Number: 59.
• Citation: Vincenti v. Kammer, 189 Md. 523, 56 A.2d 688 (Md. 1948)
• Parties: VINCENTI et al. v. KAMMER.
• Court: Maryland Court of Appeals

56 A.2d 688

189 Md. 523

VINCENTI et al. v. KAMMER.

No. 59.

Court of Appeals of Maryland

January 15, 1948

Appeal from Circuit Court No. 2 of Baltimore City; Herman M. Moser Judge.

Suit by Arthur C. Kammer against Della Vincenti and Eleanora Vincenti Rose to enforce specifically a contract for sale of leasehold properties. From a decree in favor of the plaintiff, the defendant appeal.

Decree reversed and bill of complaint dismissed.

Paul Berman and Sigmund Levin, both of Baltimore (Theodore B. Berman, of Baltimore, on the brief), for appellants.

Joseph W. Spector and Charles Jackson, both of Baltimore, for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

GRASON Judge.

This is a proceeding to specifically enforce a contract for the sale of leasehold properties. The bill of complaint was filed on October 24, 1946, in the Circuit Court No. 2 of Baltimore City, by Arthur C. Kammer, plaintiff (appellee) against Della Vincenti and Rudolph Vincenti, her husband, and Eleanora Vincenti defendants (appellants). The latter, who is a daughter of Della Vincenti, has since married and is now Eleanora Vincenti Rose.

The bill, in substance, alleges that Della Vincenti owned two improved leasehold properties known as 2119 and 2121 Maryland Avenue; that she signed a contract, dated the 28th day of November, 1945, whereby she agreed to sell the same to the plaintiff for $10,500, of which $1,000 was paid prior to the signing thereof and the balance of $9,500 was to be paid within thirty days.

It contained a provision that time was the essence of the agreement. The contract was exhibited with the bill. It is alleged that promptly after the execution of the contract the plaintiff proceeded to have the title to the properties examined; that the search revealed three judgments, two standing in the name of Benjamin Harris, in the respective amounts of $250 and $2500, and one standing in the name of Benjamin S. Harris, for one cent damages and costs of $31.65. Benjamin S. Harris was a predecessor in title to the property 2121 Maryland Avenue, and these judgments were open on the records of the Superior Court of Baltimore City. It is alleged that the said Benjamin S. Harris is probably the same person who previously owned 2121 Maryland Avenue. It is charged that since the discovery of these judgments repeated efforts have been made to obtain some information concerning Benjamin S. Harris from Della Vincenti, or some proper disposition of these judgments so that they would not constitute a lien on the property, but that Della Vincenti has refused to concern herself about these judgments, claiming that the same were not recovered against her and that they do not constitute liens on her property. It is further alleged that while title to 2119 Maryland Avenue stood in the name of Eleanora Vincenti, as a matter of fact the title to the same actually belonged to Della Vincenti and was placed in the former's name for the purpose of convenience. It further alleged that since the discovery of the judgments aforesaid, and that title to 2119 Maryland Avenue is in the name of Eleanora Vincenti plaintiff has endeavored to effect a settlement of the property with Della Vincenti and obtain a deed therefor, but has been unable to do so because of the refusal of the defendant, Della Vincenti, to execute a deed to him conveying a good and merchantable title; that Della Vincenti has at no time informed him that Eleanora Vincenti was 'in title' to premises 2119 Maryland Avenue; that the plaintiff has always been and is now ready, willing, able and anxious to carry out the terms of his contract, but he is unable to obtain a good and satisfactory title to said 'property' unless the court assumes jurisdiction in the matter and declares a clarification of the outstanding liens on said properties; that negotiations have been pending between the attorney for the plaintiff and attorney for the defendant, Della Vincenti, for the removal of the said flaw in the title by way of the judgments open against Benjamin Harris; that this was the only issue raised, as there was no question theretofore that Della Vincenti owned the two properties; that the 'defendant' advertised in the Sunday Sunpaper on October 20, 1946, the aforesaid properties for sale to the general public; that the plaintiff had no adequate remedy at law.

The bill prayed: (a) That the court assume jurisdiction for the purpose of the clarification of the issue between the parties. (b) That said agreement be specifically enforced against Della Vincenti, her husband, Rudolph, and Eleanora Vincenti, upon payment of the balance of the purchase price by the plaintiff. (c) That, in the alternative, the court appoint a trustee to convey title to said properties, or either of them, to the plaintiff, and to receive the purchase money due and unpaid, or such portion as the court might find would be due for one of the said properties. (d) That pending the determination of the suit defendants be restrained from disposing of said properties, and (e) For general relief.

To this bill the defendants filed a combined demurrer and answer. The answer denied all of the material allegations of the bill, and charged the plaintiff with laches. The chancellor heard testimony in the case and at the conclusion of the same, and after argument of solicitors, overruled the demurrer to the bill of complaint and decreed specific performance as to both pieces of property. From that decree this appeal was taken by the defendants.

These properties were placed by Della Vincenti with George F. Heubeck & Co. for sale. They were listed separately, and each listing was signed by Della Vincenti in her married name, Mrs. Rudolph Vincenti. The listing price for 2121 Maryland Avenue was $5,500, and the price for 2119 Maryland Avenue was listed at $5,000. The properties were to be sold together, neither could be sold singly. These two listing contracts were offered in evidence.

George F. Heubeck obtained the contract offered in evidence from the plaintiff, together with a check for $1,000 drawn to his order. On November 28, 1945, at around supper time, Heubeck called at the home of Mrs. Vincenti on North Charles Street. She was not at home when he arrived, but her daughter, Eleanora, received him. Heubeck said he talked with Eleanora for the purpose of convincing her that a sale of the property by her mother would best subserve her mother's interest. It was his policy to persuade relatives of one who wanted to sell to think that a contemplated sale was advantageous, and for this reason he talked with Eleanora Vincenti. He told her that the properties were in a bad state of repair and required the expenditure of a large sum of money to restore them; that he had tried hard to get the best price for them and that $10,500 was the best price he could obtain, and was a good price, and it was to her mother's interest to sell the properties. Mrs. Vincenti arrived home and her daughter retired, leaving her mother and Heubeck alone. After some time Mrs. Vincenti went into the next room, where her daughter was, and Heubeck heard them talking. He knew that they were talking about the properties, and by that time he knew that Eleanora Vincenti had an interest in them. Della Vincenti and her daughter then talked with Heubeck. On this visit he discovered, for the first time, that Eleanora Vincenti was interested in some way in these properties. He did not ask her what her interest was, nor did he ask her to sign the contract. He wanted to retain the check which the plaintiff had given him for $1,000, but Della Vincenti insisted that it be turned over to her, and he endorsed the same and gave it to her. He did not attempt to explain why he did not ask Eleanora Vincenti to sign the contract, other than to say that he thought Della Vincenti owned the properties and he was interested mostly in having the contract signed. Since that day neither Heubeck, the plaintiff, nor an agent or representative of either, have seen, written to, or called Eleanora Vincenti over the telephone.

It is perfectly plain that this contract...