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Lawless v. Merrick

Decided: November 20, 1961.

LAWLESS, ADMINISTRATRIX
v.
MERRICK ET AL.



Appeal from the Superior Court of Baltimore City; Harlan, J.

Henderson, Hammond, Horney, Marbury and Sybert, JJ. Sybert, J., delivered the opinion of the Court.

Sybert

This appeal questions the propriety of the granting of a motion for summary judgment in favor of appellees (defendants below) by the trial court on grounds that there was no genuine dispute as to any material fact and that appellees were entitled to judgment as a matter of law.

The relevant facts begin with the purchase by appellees, Robert G. Merrick, John McC. Mowbray, and Walter C. Mylander, Jr., as trustees, of 582 acres of unimproved land in Fairfax County, Virginia. Ben W. Lawless, Sr. (whose administratrix was plaintiff below and is appellant here) had acted as broker in the sale to appellees and thereafter expressed interest in reselling the property for them. Toward this end he was anxious to procure sewerage facilities for the property, which obviously would make it more valuable and result in a greater commission on any resale. As a result of discussions between Colonel Mowbray and Mr. Lawless the latter on October 31, 1955 submitted in letter form the following proposal:

"Following our conversation, this letter will outline the basis on which I would like to make an effort to get Fairfax County permission for you or your grantee to build a pumping plant and force main leading to the proposed Fairfax County Pumping station to be erected at Braddock Road and Accotink Creek, all as shown on enclosed map of your property." (Emphasis supplied.)

The specific terms by which compensation was to be determined are contained in the following portion of the letter:

"(a) No compensation to me unless such a permit is granted, or contract made with County for installation of improvement;

"(b) If permit is granted, or contract entered into, then on any subsequent sale of the property I am to receive at the time of such sale five percent of the amount by which the sales price exceeds the sum of $1,500 per acre plus any expense you have been to in connection with our arrangement, including cost of installation of the improvement, if you decide to build it yourself;

"(c) It may be that as a result of the negotiations by me under this arrangement, that a favorable deal may be worked out with the County and adjoining landowners for a more comprehensive system including the other lands, and perhaps a location of a pumping station lower down on Accotink Creek. If this negotiation has that result, then I would think you ought to recognize my effort, but as the matter is a bit nebulous, it is impossible to set up any terms for any compensation, and I am content to let it stand as follows: if, in your sole discretion, you think I am entitled to any compensation out of such a deal with the County and adjoining property owners, you may pay me, whatever in your sole opinion, you think I should receive, and if you decide that I am not entitled to any compensation for my effort, I do hereby and will submit to your decision, and

will not make any claim for any compensation." (Emphasis supplied.)

The letter stated that Lawless would have until April 30, 1956 "to complete my work and to secure a permit for this installation * * *". There was a written acceptance of Mr. Lawless' proposal on behalf of the trustees in a letter of Mr. Mylander dated January 20, 1956, confirming an oral assurance "to accept your services on the basis outlined." Prior to the acceptance, Mr. Lawless had been actively seeking the desired sewerage improvements through various contacts with owners of adjacent land, as well as with Fairfax County officials. He appeared before the Board of Supervisors of Fairfax County on December 28, 1955 in an effort to ...


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