Reigart v. Fisher

ADKINS, J.

This is a suit for specific performance of a contract between plaintiffs and defendant for the sale and purchase of a country home in the new annex to Baltimore city “containing about 7 acres, more or less, and improved by a 15-room stucco cottage, a garage, and other improvements, being the same property conveyed by deed dated June 26, 1917, from Elizabeth D. Lee, widow, to the above-mentioned parties of the first part (the vendors), and recorded among the land records of Baltimore county, in W. P. C. 484, folio 164.” “The purchase price is thirty-five thousand dollars ($35,000.00) of which five thousand dollars ($5,000.00) have been paid prior to the signing . . .

The contract is dated July 12, 1923. The name of Mrs. Fisher, the owner of the property, by her husband, was signed, “Gulielma P. S. Fisher, per E. McC. Fisher,” and he also signed his own name. The testimony in the case shows he had authority to act for her in the matter at the date of the contract, and his so doing was confirmed by a letter from Mrs. Fisher to the brokers dated July 15, 1923. The important questions in the case grow out of the acknowledged shortage of acreage, the true amount contained in the property being 4.764 acres, and the dispute as to representations made by Mr. Fisher and J. S. Fenwick, an employee of Caughy & Co., the brokers, as to the southern boundary of the property, Reigart, the defendant, insisting that in pointing out the boundaries Fenwick said, “The southern boundary line is beyond the woods,” and that Fisher acquiesced in this description by nodding his head. This is denied by both Fisher and Fenwick. As a matter of fact, the woods is not a part of the property.

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At this point we may as well dispose of the controversy as to what was said about the acreage before and at the time of the signing of the contract. Fisher stated in the preliminary negotiations that he thought there were seven acres in the tract, and we do not find plaintiffs' contention is sustained that at the time of the preparation of the contract Fenwick called Reigart's attention to the fact that according to the deed to Fisher the tract contained only four and three-fourths acres.

The day after the signing of the contract Fenwick wrote Reigart the following letter, viz.:

“Mr. H. P. Reigart, Monroe, N. Y.--Dear Sir: Mr. Edward Fisher, vendor of the property at Melvale, Baltimore, Md., which you have contracted to buy, has informed us that after consultation with his attorney and brother-in-law, at our request, he finds that he has title to only the 4.764 acres contained in the deed which is referred to in the contract of sale.

The outlines of the property are exactly those which we pointed out to you, but he was mistaken as to the correct acreage. This discrepancy does not change the property as you saw it, and we sincerely trust that it will not affect its value and attractiveness to you.

We regret very much that this error was made, and await your advice in the matter.

Caughy & Co.

Rec'd July 14th.

[Signed] J. S. Fenwick.”

Reigart says he was considerably upset on receipt of this letter, and about July 20th returned to Baltimore to see Caughy & Co. about it.

In the meantime, on July 17th, Fisher wired Reigart as follows: “Please wire at my expense latest date furniture must be out of house.” And on July 18th Reigart replied by wire: “August fifteenth.”

It will be noted that, although he had then heard of the shortage in acreage, no point is made of it, but Fisher is notified to move by August 15th, and there is no suggestion that the matter be held up for further investigation. That telegram is practically a confirmation of the contract after Reigart was advised of the shortage.

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It is undoubtedly the rule that a vendee in an unexecuted contract is entitled to have that for which he contracts before he can be compelled to part with the consideration he agreed to pay. Where there is a substantial defect with respect to the nature, character, situation, extent, or quality of the estate, which is unknown to the vendee, and in regard to which he is not put upon inquiry, specific performance will not be decreed. . . . But the variance must be substantial and material. When some part even within the bounds of the land contracted to be sold cannot be conveyed by the vendor, from some cause not involving mala fides on his part, if such part is of small importance, or is immaterial to the purchaser's enjoyment of that which may be conveyed to him, the vendor may insist on performance, with compensation to the purchaser, or a proportionate abatement from the agreed price; but this cannot be done where the part is a considerable portion of the entire subject-matter, or is material to the enjoyment of the other part. . . .

Any misrepresentation or misdescription of the estate or interest or extent or value of the property in a material and substantial point, so far affecting the subject-matter of the contract that it may reasonably be supposed that but for such misdescription or misrepresentation the contract would never have been made, at once releases the purchaser from the bargain. . . .

Now the present case does not involve inability to convey any part of the land described in the contract; but the land described contains only four and three-fourths acres, whereas it was represented in the written contract to contain “about seven acres more or less,” and the husband of the owner, acting for her, in response to an inquiry as to how many acres there were in the property said, “seven acres, or more than seven acres.” This was a personal representation made in the course of the negotiations for the sale by the husband of the owner, who had lived on the place a number of years, and on whose judgment and knowledge the purchaser had a right to rely. It is more than the mere recital in a contract of acreage “more or less” following a description by definite boundaries. The general rule in such case of misrepresentation, where the sale can be enforced, is that the vendee shall have what the vendor can give, with an abatement for so much as the quantity falls short of the representation. . . .

This brings us to the final question: Did the chancellor err in decreeing specific performance or in the compensation awarded?

Applying the rule approved in Keating v. Price, Gunby v. Sluter, and Foley v. Crow, and in Doyle v. Whitridge, . . ., and Slingluff v. Dugan, . . ., we think that the contract was properly enforced. It is apparent from the evidence that defendant was not especially concerned about just how many acres he got. At any rate, it certainly cannot be said that the misrepresentation as to acreage so far affected the attractiveness of the place that it could reasonably be supposed that but for such misrepresentation the contract would not have been made, or that by reason of the shortage in acreage, which in value was less than 6 per cent. of the purchase price, defendant failed to get substantially what he intended to buy and what constituted the object and inducement of the purchase. He saw the place, and was attracted by its appearance. He saw just what was contained within its boundaries. He desired it only for a home and not for a farm.

We have not overlooked the argument appealingly presented by counsel for appellant, based on changed conditions. But unfortunate and regrettable as they are, we cannot disregard the law as announced by Judge Miller in Brewer v. Herbert, 3. . ., where enforcement of the contract involved peculiar hardship:

“Where a contract respecting real estate is in writing, and is in its nature and circumstances unobjectionable, it is as much a matter of course for a court of equity to decree a specific performance of it, as it is for a court of law to give damages for a breach of it. . . . ‘The fairness or hardship of a contract, like all its other qualities, must be judged of at the time it was entered into, not by subsequent events.’ If it was then certain, mutual, fair in all its parts, and for an adequate consideration, it is immaterial that by force of subsequent circumstances, it has become less beneficial to one party unless such change is in some way the fault of the party seeking its specific execution.”

This is not the kind of a case where the hardship of enforcement to the defendant is out of proportion to the benefit of the plaintiffs.

We find no error in the decree appealed from in so far as it granted the prayer for specific performance, and for injunction restraining the defendant from prosecuting his suit at law for the recovery of the payment on account of purchase money. But there was error, we think, in the abatement allowed the defendant. The evidence shows that the price of the two-acre lot which plaintiffs were negotiating for to take the place of the shortage was $2,000, and that amount should have been allowed in abatement.

Decree affirmed in part and reversed in part, and cause remanded in order that a decree may be passed in accordance with this opinion, with costs to appellant.