Myers v. Forbes

Bartol, J.,

delivered the opinion of this Court.

The hill in this case was filed by the appellant to compel the specific performance of a contract made by the appellee with the complainant’s testator, and also to enjoin the appellee from further proceedings under a scire facias, on a mechanic’s lien. The contract is in these words :

“ I hereby agree to do the carpenter’s work on the warehouse about to be built for Charles Myers, on the corner of South street and Exchange Place, at sixty-one per cent, off carpenter’s full measurement price, the work to be approved of by the architect.

“ In consideration of the above contract, I hereby agree to lease of Charles Myers, the following lots, that is, all that lot of ground beginning for the same on the east side of Spring street, at the north-west corner of a two story brick house, said lot belonging to Alexander Lowry, and running thence north-westerly 26 feet, thence easterly parallel with Madison street, 60 feet, thence southerly parallel with Spring street 26 feet, thence westwardly parallel with Madison street 60 feet to the place of beginning. The above to be divided into two lots, and the price to be $20.00 for each lot annually, payable semi-annually on the first days of January and July, the rent to commence on the 1st day of January, 1861 — said Eorbes to have the privilege of buying out said ground rent within three years, at the rate of six per cent, per annum. '

“Jambs S. Forbes.

Baltimore, Nov. 28, 1860.

Endorsed: — Patrick IIammill, llot.

Witness : — O. II. Myers.”

*610 It appears by tbe proof that the contract for doing the-carpenter’s work on the. warehouse was fully performed by Forbes, the appellee, and after much altercation and dispute between him and Myers, the appellant’s testator, with regard to the price of the work, a final settlement of the dispute was made between them on the 28th day of May, 1861, when Myers gave his two notes to Forbes, one for $500, payable the first of October, 1861, and the other for $468.03, at six months, and a receipt was given by Forbes declaring the same to be, “when paid, in full of all demands against Myers for carpenter’s work, materials furnished, &c., on the warehouse.

A claim of lien was filed in the Clerk’s office by Forbes, and a balance of $403.69 remaining unpaid, a scire facias was issued for its collection, and to restrain further proceedings thereon, was one object of the bill in this case.

The equity of the bill rests upon the alleged failure and refusal of the appellant to perform' his agreement to lease the lot of ground on Spring street, and the bill prays for a decree requiring a specific performance of the contract to lease.

Objection was taken below to the jurisdiction of the Court, and the Circuit Court, entertaining the opinion that this objection was well taken, on that ground dissolved the injunction and dismissed the bill.

In the opinion of this Court, if the case of the complainant were free from difficulty in other respects, and depended alone on the decision of the question of jurisdiction, the decree of the Circuit Court would have to be reversed.

The case of Smoot et al. vs. Rea and Andrews, 19 Md. Rep., 398 , and Mercer vs. Howser, (see appendix,) decided at the last term, are conclusive of this question.

In our opinion the evidence in the case fails to sustain the defence on the ground either of waiver and abandon *611 ment of the contract on the part of the appellant’s testator, or of laches and delay as contended for the appellee.

The insuperable difficulty in granting the relief prayed consists, in our opinion, in the want of definiteness and certainty in the terms of the contract sought to he enforced. In such a case, to repeat the language of this Court, in Stoddert vs. Bowie, 5 Md. Rep., 28 , “it is not only necessary to prove that an agreement was made, hut the terms of the agreement must he so clearly and fully shown that the Court can have no difficulty in knowing what the terms are, so as to he certain of carrying into effect the contract made by the parties. Passing a decree for specific execution upon proof short of this, instead of executing the agreement of the parties, would he making one for them, which the Court certainly has no authority to do.” See also 2 Story’s Eq. Jur., sec. 767.

In this case the contract is altogether silent as to the term for which the intended lease was to he made. The term or duration of a lease is an essential part of it, and in the absence of any stipulation in that respect a Court of Equity cannot decree a specific performance of a contract to lease. In Howard vs. Carpenter, 11 Md. Rep., 278 , it was held that without a stipulation fixing the rent reserved, a contract to lease could not he specifically enforced in equity. But the length of the term is just as necessary a part of a lease as the rate of rent reserved.

In our opinion this defect in the contract has not been removed by anything disclosed in the proof.

Two leases for ninety-nine years, renewable, were prepared by A. W. Thompson, the conveyancer, and signed by Myers and wife, hut were not delivered to the appellee ; nor does it appear from the testimony that he either directed the leases to be drawn in those terms, or *612 that he ever saw them or knew their contents, or that they had been executed by Myers until long afterwards, when, according to the evidence of A. W. Thompson, he remarked “that the drawing of the leases was unauthorized by him.”

(Decided May 15th, 1866.)

This witness states that according to his recollection the contract was left with him by Charles Myers, deceased. The witness, Charles H. Myers, states that his father told Forbes to leave the original deed with A. W. Thompson, in order to have the leases drawn. It does not appear, however, that either the original deed or contract was taken to Thompson by Forbes,. oi\ that he gave any instructions to Thompson with regard to the preparation of the leases. These seem to have been drawn by Thompson, either by the direction of Myers or without any particular instructions as to the terms; and there is, in our •opinion, not s.uch clear, and satisfactory evidence to connect the. appellee with the preparation and execution of the leases, as to give to those acts the force of a part performance of the agreement, so as to take it out of the operation of-the statute of frauds, or to "supply the defect in the terms and provisions of the agreement, so that a Court of Equity may clecree its specific'-performance, even if it were possible to supply such a defect in the written paper by parol evidence. ’ '

Considering, that the agreement sought tó be specifically executed in this- case is vague, uncertain and indefinite in its terms, and incapable of being specifically enforced, the decree of the Circuit Court must for that reason be affirmed without .costs to the appellee.

Decree affirmed.