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Senick v. Lucas

Decided: April 10, 1964.

SENICK
v.
LUCAS



Appeal from the Circuit Court for Anne Arundel County; Duckett, J.

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

Prescott

After a judge in the Circuit Court for Anne Arundel County sitting without a jury, rendered a judgment for eleven hundred dollars against the appellant, he appealed.

He presents two questions for our consideration, but it will only be necessary to answer one: Was the appellee warranted in rescinding an entire contract for the purchase of improved realty, because a small shed located at the extreme rear of the property encroached upon a neighbor's land by 1.2 feet, and, as a result thereof, the appellant had about 20 inches of the shed sawed off and refinished?

On April 22, 1961, the parties entered into a contract of sale to the appellee of two lots in Outing Park, Anne Arundel County, improved by a one story frame bungalow and two very small outbuildings for three thousand dollars in fee, of which two hundred dollars was paid at the time of the signing of the contract, eight hundred dollars was to be paid at time of settlement (within ninety days), and a mortgage for the balance was to be executed to the appellant, payable at the rate of $65.00 per month.

The deposit of two hundred dollars and the sum of eight hundred dollars was paid by the appellee, and the appellee was given keys to the bungalow before the expiration of ninety days. But before complete settlement had been reached, the appellee discovered that a shed at the rear of the lot being sold was located 1.2 feet over the property line of the property to the west.*fn1

He attempted to get in touch with the appellant but was unable to do so, as appellant apparently was out of the State. On August 3, 1961, appellee's attorney wrote to the appellant's last known address stating that appellee was rescinding the

contract because of alleged defects. Then after negotiations attempting to reconcile the parties' differences, another letter, dated August 17, 1961, was sent by the appellee's attorney to the appellant, giving three alternatives of action in reference to the shed in order to settle these differences. One of these proposals was that the appellant would move the shed back to the property line.

The attorney for appellant replied to this letter on August 23, 1961, and stated that appellant would move the shed as set forth in the above proposition. At this point, the evidence becomes conflicting. Appellant states, and appellee denies, that appellee authorized him to "cut that piece [the part that encroached upon the neighbor] off," and he had a competent carpenter saw it off and refinish it. The trial judge found that appellee's version of this disputed fact was the correct one, and we cannot say his finding was clearly erroneous.

The appellant had the carpenter saw off about 20 inches of the west side of the shed and refinish it. The little shed is located in the extreme northwest corner (which is the rear) of the lot, more than 50 feet from the dwelling. It was divided into two parts: the part to the west was 6.5 by 7 feet (at this point, we accept appellee's figures, which vary insignificantly from those of the surveyor), which was used as a tool shed; the eastern portion was 5.3 by 5.5 feet and was utilized as an old-fashioned privy, there being no toilet facilities in the bungalow. The portion used as a privy was not disturbed, but appellee contends that in the sawing off of the approximately 20 inches, the appellant made the tool shed too small for his use thereof as a tool shed, and, in addition, removed a small window located in the western side.

The trial judge found, with evidence to support the finding, that the entire shed "was certainly very inexpensive and probably not worth over $75 -- to $100.00 * * *." (Appellant testified he could replace it "material and all for $100.00.") So, if we regard the tool shed in its present condition as being of no value whatsoever, we find that the parties have ...


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