Appeal from the Circuit Court for Anne Arundel County (DUCKETT, J.).
The cause was argued before Brune, C.J., and Henderson, Hammond, Prescott, Horney, Marbury and Sybert, JJ.
HENDERSON, J., delivered the opinion of the Court.
The appellee filed a bill for specific performance of an alleged
contract by the appellants to sell their house and lot at 44 Calvert Street in Annapolis. A decree pro confesso was entered, but subsequently set aside. A demurrer was overruled. Finally, after a hearing on the merits, the Chancellor granted the relief prayed. An appeal was entered and the case was advanced for hearing. In a per curiam order, we reversed. We now state the reasons for that action.
In May, 1963, T. Carroll Worthington, an experienced realtor, was authorized by the County Commissioners of Anne Arundel County to negotiate for the purchase of certain properties on Calvert Street including the Walkers' property. He called on the Walkers and told them the County wanted their property for a proposed extension of the County Jail, located nearby. Mrs. Walker operated a beauty shop in the building, owned by her and her husband, and was unwilling to sell. On June 25, 1963, Worthington and his son called on the Walkers and told them that the County would condemn if they did not negotiate a sale, and urged them to name a figure. Mr. Worthington, Senior, stated that the County might pay as much as $19,500. He handed them a typewritten letter under his letterhead, reading as follows:
"We hereby agree to sell our property known as No. 44 Calvert Street, Annapolis, Maryland, to the County Commissioners of Anne Arundel County, Maryland, at and for the price of " Walker filled in the figure of $25,000, and the Walkers signed it.
Mr. Worthington admitted telling the Walkers that two property owners in the past had received less than they asked when they refused to sell and their properties were condemned. Both the Worthingtons admitted they told the Walkers that if they didn't sell, the County "would condemn." The only difference between the Worthingtons' version of what transpired, and that of the Walkers, is that the former testified they told the Walkers the County would condemn for an office building or parking lot, the latter testified they were told it would be for a jail site.
The appellants first contend that there was no enforceable contract of sale. It is admitted that the County Solicitor wrote the Walkers on July 10, 1963, stating that the Commissioners "accepted your offer," and expressing the opinion that the offer
and acceptance "spells out a mutual and binding contract of sale which may be enforced in court." The letter also stated: "Mr. Worthington will now present you with a formal contract of sale for you to sign which spells out such details as settlement date, etc." The Walkers refused to sign the "formal contract" when presented, and refused to sign another contract presented by a Mr. Hynson, who had been retained for the purpose by Mr. Worthington. The County Solicitor informed the Commissioners on September 26, 1963, when purchases of other properties were "finally ratified and approved," that the Walker property "is not under contract." The appellants contend that the letter they signed was no more than a tentative offer, and the County's "formal contract" was a counter-offer, since it fixed the time for settlement at 120 days, and made time of the essence. The appellee contends that the formal contract was sufficiently definite and added nothing to what was implicit in the prior acceptance, and that it was understood that the formal contract was to be only "evidence" of a completed agreement. See McGinn v. Amer. Bank Sta. Co., 233 Md. 130, 133, Eastover Stores Inc. v. Minnix, 219 Md. 658, 666, Post v. Gillespie, 219 Md. 378, 386, and Peoples Drug Stores v. Fenton, 191 Md. 489, 493. See also Binder v. Benson, 225 Md. 456, 462.
If we assume without deciding that the appellee is correct and that the exchange of letters created and enforceable contract, we think the evidence sustains the appellants' second contention that there was a misrepresentation sufficiently material to make the contract voidable. The cases make it clear that a material misrepresentation, even though innocently made, may be a defense to specific performance. Glendale v. Crawford, 207 Md. 148, 157 et seq., and cases cited; Carozza v. Peacock Land Corp., 231 Md. 112, 121.Cf. Walsh v. Edwards, 233 Md. 552, 557, and ...