Appeal from the Circuit Court for Baltimore County; Turnbull, J.
Brune, C. J., and Prescott, Horney, Marbury and Sybert, JJ. Marbury, J., delivered the opinion of the Court.
The appellant, Konstantine J. Prevas, plaintiff below, an attorney now appearing in proper person, derived his claim by an assignment from his sixty-five year old mother. He brought suit in the lower court to recover damages for the unpaid monthly rental payments accrued as the result of the breach of the lease originally entered into between his assignor and the appellee, William Gottlieb, defendant below. After a full trial on the merits before the court, sitting without a jury, the trial court found as a fact that the former landlord and her attorney did, by their conduct, "lead the defendant to believe that at the time of the signing of the so-called amendment to the lease, on July 31, 1952, he was in actuality being relieved from liability on the lease, and that [one] Becker was being substituted for him as sole tenant"; and on October 11, 1961, entered judgment in favor of the defendant and against the plaintiff for costs, which gives rise to this appeal.
On July 1, 1949, the appellee and Adolph Becker entered into an agreement of partnership to operate a business known as Mardi-Gras Novelty Amusements, at 424 E. Baltimore Street, Baltimore, Maryland. On March 7, 1952, Gottlieb and Katherine Prevas entered into a lease covering the premises at which the partnership business of an amusement arcade and lunch counter was conducted. The terms of the lease were for five years beginning June 1, 1952, and ending May 31, 1957, at a rental of $6,600 per year, payable $550 a month in advance. On or about July 31, 1952, Gottlieb and Becker went to Gottlieb's attorney, Melvin Silberg, to dissolve their partnership. According to the testimony of Gottlieb and Silberg, Mr. Silberg, over the telephone, spoke with a person identified by Gottlieb as Katherine Prevas, owner of the premises and mother of the appellant. They both testified that she said that she would let Gottlieb off the lease and she would put Becker on the lease, but that she would not surrender a deposit of $3,000 placed in escrow as security for performance of the terms of the lease. Gottlieb said he and Becker then went to Mrs. Prevas' house where she said, in response to Gottlieb's request to be let off the lease, "don't let it worry
you" and "I'll let you off," and Mrs. Prevas then told him to see her son about it. He further said he then went with Becker to see her son, the appellant, and he said in response to Gottlieb's request to be released, "Willie, you don't have anything much to do with it. Go up and see my attorney, Mr. Anderson." He also testified that he explained the situation to Mr. Anderson and Mr. Anderson prepared a paper based on that conversation. The paper dated July 31, 1952, executed by Mrs. Prevas, Gottlieb and Becker, and witnessed as to all parties by Harry J. Anderson, in fact was not a release of Gottlieb from the lease but was, by its terms, an amendment to the lease of March 7, 1952, merely adding Becker as a lessee, and providing that all of its terms, covenants and conditions should remain in full force and effect, and should bind lessees (Gottlieb and Becker) jointly and severally, and inure in favor of the lessees.
Katherine Prevas in her testimony denied talking over the telephone to the appellee or Silberg, and said that she had never spoken to Gottlieb with reference to the lease since the negotiations leading up to its execution prior to March 7, 1952, and denied that she had talked to Gottlieb and Becker with reference to a release of Gottlieb from the provisions of the lease.
The appellant denied that the appellee and Becker came to see him with reference to the lease and testified that several days before the amendment to the lease he was first informed by Mr. Anderson that Gottlieb had Becker as a partner, whose name it was desired to have added to the lease as a cotenant. He said that he gave this information to his mother and that they both approved adding Becker's name to the lease by way of amendment.
In his deposition taken at Norfolk, Virginia, Adolph Becker, the former partner of the appellee, did not recall a meeting with Katherine Prevas or her speaking the words "don't let it worry you," and said that he remembered talking with the appellant about his going on the lease but did not recall any discussion of releasing the appellee.
Harry J. Anderson, attorney for appellant's mother, testified
that the appellee and Becker came to his office about a week prior to July 31, 1952, when the appellee requested him to amend the lease so that Becker would be added to it. He denied drafting, or the execution, of a release of the appellee and testified that the only paper prepared by him and signed by the parties was the amendment of July 31, 1952.
On the same day Gottlieb and Becker entered into an agreement whereby in consideration of $5,200, including $3,000 deposited with Katherine Prevas by Gottlieb as security for the performance of the lease, paid by Becker to Gottlieb, the parties dissolved their partnership so that Becker should remain the sole owner of the business. This agreement was witnessed by Melvin S. Silberg. The agreement was accompanied by a ...