Barnes v. Sind Brief for Appellant

    IN  THE

United States Court of Appeals
POE THE FOURTH CIRCUIT

No. 9608

ROLAND E. BARNES, Appellant and Cross-Appellee,

vs.

ABRAHAM S. SIND a n d  ISRAEL COHEN, PART­
NERS, TRADING AS A. SIND & ASSOCIATES, a n d  
ABRAHAM S. SIND a n d  ISRAEL COHEN, INDI­
VIDUALLY, Appellees and Cross-Appellants.

BRIEF FOR APPELLANT

J oseph L. Rauh, J r., 
J ohn Silard,

1625 K Street, N.W., 
Washington 6, D, C., 

Attorneys for Appellant.



TABLE OF CONTENTS
Page

Statement of the Case............................................... 1
Argument ..................................................................  4

I. The Substitution in the Decree of Specific 
Performance of a Quit-Claim Deed for the 
Promised Warranty Deed, Constitutes Prej­
udicial E rro r.....................................................  4

II. The Court Below Erred, in Refusing to En­
force the Liquidated Damage Clause of the
Agreement .......................................................  5

Conclusion ..................................................................... Id

C ita tio n s

Baltimore Bridge Co. v. United Railways, 93 A. 40,
125 Md. 208..................................................................  6

Boston Iron & Metal Co. v. United States, 55 F. 2d
126, cert, denied 286 U.S. 558.....................................  6

Cowan v. Meyer, 94 A. 18, 125 Md. 45.......................  6
Graham v. Cooper, 86 A. 991, 119 Md. 358................  6
United Surety Co. v. Summers, 72 A. 775, 110 Md. 950 6

M is c e l l a n e o u s

Corbin on Contracts, §1072........................................... 6
Pomeroy, Specific Performance of Contracts, § 10. . 4
Restatement of Contracts, § 235...................................  5
West’s Maryland Law Encyclopedia, Damages, § 99 6

—2519-7



IN' THE

United States Court of Appeals
FOB TH E FOURTH CIRCUIT

No. 9608

ROLAND E. BARNES, Appellant and Cross-Appellee,
vs.

ABRAHAM S. SIND a n d  ISRAEL COHEN, PART­
NERS, TRADING AS A. SIND & ASSOCIATES, a n d  

ABRAHAM S. SIND a n d  ISRAEL COHEN, INDI­
VIDUALLY, Appellees and Cross-Appellants.

BRIEF FOR APPELLANT

Statement of the Case

Plaintiff-Appellant, Dr. Roland E. Barnes, is principal 
of the Travilah Elementary School in Rockville, Maryland, 
presently absent on leave as an educational consultant in 
Afghanistan. In 1961 when Mrs. Barnes also became em­
ployed in the Rockville school system and their two chil­
dren enrolled in school there, the daily travel from the 
Barnes ’ residence in the District of Columbia to Rockville 
was found too burdensome. Accordingly, in the summer 
of 1961 the Barneses, who are Negroes, determined to 
purchase a home in the Rockville, Maryland area.

Having seen defendants’ advertisement in a Washington

(1)



2

paper, Dr. Barnes, on October 9, 1961, visited the Rock­
ville housing development owned and being constructed 
by defendants. Dr. Barnes found the proffered homes 
suitable; he selected a style of house and location (Lot 9, 
Block 3), sig’ned a purchase agreement which was counter­
signed by the realtor’s agent on the premises (infra, Ap­
pendix p. 13) and put down a one thousand dollar deposit. 
But two days later the deposit was returned by the realtor 
with a notation that “ this deal cannot- be consummated 
at this time.” It subsequently appeared that this action 
was occasioned by the realtor’s understanding that de­
fendants did not desire to sell to Negroes.

Dr. Barnes promptly retained present counsel, who com­
municated with the realtor and then with defendants, and 
in due course he and defendants sat down with their attor­
neys at a negotiating meeting on November 28, 1961. At 
that meeting, defendants stated they would sell a house 
to Dr. Barnes in about two years, but that an earlier sale 
to a Negro (the purchase agreement had stipulated March 
15, 1962 as occupancy date) would hurt their sales in the 
development (Tr., p. 69). Dr. Barnes, on the other hand, 
urged that it was essential for his family to move into a 
new home in the Rockville area by the September com­
mencement of the 1962-63 school year (Tr., p. 72). After 
further negotiations and following threat of suit by plain­
tiff, a settlement agreement was signed between the par­
ties on January 9, 1962 under which the defendants agreed 
to provide Dr. Barnes with the house and lot he had origi­
nally selected or “ an identical house on an equivalent lot” 
in their development no later than August 30, 1962, under 
the same terms stated in the purchase agreement of Octo­
ber 9, 1961 (infra, Appendix p. 16).

On July 31, 1962, prior to the agreed transfer date, 
defendants did offer Dr. Barnes a house which was identi­
cal to the one he had selected; however, this house was



3

not on an equivalent lot but on one far less desirable and 
significantly smaller in size. Defendant Sind conceded on 
cross-examination below (Tr., p. 356), that he had selected 
this as the only lot to be offered to Dr. Barnes because, 
unlike the first property which was prominently situated, 
at the one offered to Dr. Barnes he would be hidden from 
view: “ I thought, if I put the man in the middle of a 
block, he might not be seen as often.”

Plaintiff, following defendants’ refusal to arbitrate in 
accordance with the contractual arbitration clause, sued 
for breach of contract in October of 1962. After ah exten­
sive trial, the District Court ruled that defendants were 
guilty of the breach alleged in that the offered lot was not 
equivalent to the one plaintiff had originally selected in a 
number of significant respects (infra, Appendix p. 40), 
and that therefore the defendants breached their agree­
ment to sell to plaintiff the original house on Lot 9, Block 
3 or “ an identical house on an equivalent lot.” The Dis­
trict Court granted specific performance to plaintiff for 
the transfer of the house and property located at 11810 
Smoke Tree Road—the lot among those still available at 
the time of trial most nearly alike to the one first chosen 
by Dr. Barnes. The Court also awarded plaintiff compen­
satory damages for delay in performance in the amount 
of $1,500 on account of extra travel costs incurred by 
Dr. Barnes when he was unable to move near his school 
in Rockville during the 1962-63 academic year.

Plaintiff has appealed, asserting the inadequacy of the 
remedy granted by the District Court in that:

(1) instead of the “special warranty deed” promised 
in the settlement agreement being enforced, the 
decree of specific performance requires defend­
ants only to give a quit-claim deed with possible 
dower rights reserved, and



4

(2) the District Court erroneously refused to enforce 
the liquidated damage clause of the settlement 
agreement.

We set forth in the Argument further facts bearing upon 
our two allegations of error by the District Court.

ARGUMENT

I. The Substitution in the Decree of Specific Performance 
of a Quit-Claim Deed for the Promised Warranty Deed, 
Constitutes Prejudicial Error.

The Court below, having found that the defendants vio­
lated their settlement agreement of .January 9, 1962, and 
that the agreement was sufficiently precise to support 
equity enforcement, granted the usual specific perform­
ance available on an agreement for the transfer of realty. 
Pomeroy, Specific Performance of Contracts, § 10. But 
without explanation and contrary to the contractual obli­
gation of the defendants which the Court in its opinion 
purported to enforce, the decree substitutes (infra, Appen­
dix p. 46) a mere quit-claim deed of “ defendants’ right, 
title, and interest . . . subject also to the possible dower 
interest of Judy Sind,” in place of the “ special warranty 
deed” promised in the settlement agreement. The orig­
inal purchase agreement of October 9, 1961 stipulated 
(infra, Appendix p. 12) that sellers agreed to execute 
and deliver “a good and sufficient special warranty deed,” 
and this stipulation was incorporated in the settlement 
agreement of January 9, 1962, which provided that the 
owners would deliver a completed house to Dr. Barnes “at 
the price and terms set forth in the house purchase docu­
ment of October 9” (infra, Appendix p. 16). By the arbi­
trary substitution of a quit-claim deed with possible dower



0

reserved, plaintiff would be forced to pay the full purchase 
price for the acquisition of his home, without subsequent 
recourse should defendants’ title prove defective for dower 
or other reasons. This is in sharp contrast to the express 
agreement between the parties, wherein defendants had 
promised a warranty deed.

Clearly, the decree of specific performance materially 
alters the promised transfer of fully warranted title. When 
a contractual promise is clear and nothing implies an 
unusual usage by the parties, it should be construed in 
accordance with its plain meaning. Restatement of Con­
tracts, § 235. The contract having been breached by de­
fendants and found amenable to specific performance, the 
substitution of a quit-claim deed for the expressly prom­
ised warranty deed constitutes plain error which requires 
correction by this Court.

II. The Court Below Erred in Refusing to Enforce the 
Liquidated Damage Clause of the Agreement

Dr. Barnes was originally induced to seek a new home 
in the Rockville area because of financial, time, and per­
sonal burdens on the family, of extensive daily commuting 
from the District of Columbia. In October (see Plaintiff’s 
Exhibit 10) and at the pre-settlement negotiating meeting 
in November of 1961, Dr. Barnes emphasized to defendants 
the necessity of obtaining a home in the Rockville area 
before September, 1962, to avoid these family burdens 
during the next school year. Defendants, however, de­
clared their reluctance to permit occupancy until a later 
time, fearing an impact upon sales in the project. Under 
these circumstances, Dr. Barnes could reasonably anticipate 
possible delay by defendants in their performance under 
the settlement agreement; accordingly, a clause was in­
serted in that contract (infra, Appendix p. 17) providing



6

for $100 a day for delay in performance after August 31, 
1962, but in no event to exceed $15,000. The District Court 
ruled this clause to be a penalty; in our view this was not 
an unreasonable provision under the circumstances pre­
sented.

For delay in performance, provisos similar to the clause 
here involved have been upheld by this Court and the 
Maryland Supreme Court. See Boston Iron & Metal Co. 
v. United States, 55 F. 2d 126, cert, denied 286 U.S. 558; 
Baltimore Bridge Co. v. United Railways, 93 A. 40, 125 
Md. 208; Cowan v. Meyer, 94 A. 18, 125 Md. 45; United 
Surety Co. v. Summers, 72 A. 775, 110 Md. 950; Graham 
v. Cooper, 86 A. 991, 119 Md. 358. Such clauses for delay 
in building contracts are “ usually construed as liquidated 
damages . . . principally on the ground of the uncertainty 
in calculating the damages . . . ” West’s Maryland Law 
Encyclopedia, Damages, § 99. See, generally, Corbin on 
Contracts, Section 1072.

In this case, damages from delay were most difficult of 
precise measurement and the contractually stipulated 
amount was not unreasonable or exorbitant. By any 
fair calculation, the additional calculable financial bur­
den imposed upon the Barnes family by the failure of 
the. owners to perform, as promised, in August of 1962, 
and the Barneses’ consequent continued “ dual life” in 
Washington and Maryland, is twenty-one dollars per day. 
An itemized daily schedule (infra, Appendix p. 33) of 
travel and related costs was incorporated in “ Plaintiff’s 
Answers to Questions Not Answered at Deposition” : $7.00 
for fair rental value of the property withheld from plain­
tiff ; $9.20 for extra fuel, mileage, and car depreciation; 
$9.00 for two hours of additional travel per day for Mr. 
and Mrs. Barnes; and $1 for child care payments. This 
assessable $21.20 per day of special damages represents



7

ovei $6,000 for the 1962-63 school year, during which the 
Barneses were forced to continue their dual existence, 
commuting the long drive from home to school each day.5

And there are even larger professional losses; it is pre­
cisely because of the seriousness of these damages, difficult 
to calculate in exact monetary terms, that the liquidated 
damages clause was appropriate. A principal item of such 
losses was the restricted opportunity for Dr. Barnes, a 
school principal and Mrs. Barries, a teacher-consultant for 
visually handicapped children, to spend time and circulate 
after school hours in the community from which their 
students and colleagues were drawn. As Dr. and Mrs. 
Barnes testified (infra, Appendix pp. 19 to 27), it was bur­
densome and difficult after taking their children home in 
the afternoon on a 45-minute car trip, to return to the 
school area again in the evening to attend after-hours pro­
fessional meetings." Professional advancement for career 
educators requires more than minimal school attendance 
during- duty hours. When normal after-hours association 
with fellow educators and in the larger school community 
was precluded by the burdens of their “ dual life,” Dr. and 
Mrs. Barnes were injured in an important aspect of their 
professional careers. Such injury, no less than extra trans­
portation costs, was part of the foreseeable special damage 
from delay in defendants’ performance.

The plaintiff was required to drive an additional twenty-two miles a 
day through congested areas, which would have been obviated by the move 
to the Rockville location; Mrs. Barnes was required daily to drive an addi­
tional twenty-four miles to her Rockville office (seventeen miles from the 
District as compared to five from defendants’ project), and some ten addi­
tional miles to transport her children to their schools (infra, Appendix 
pp. 19, 25, 27). .

2 For the same reason, the Barnes children lost the opportunity of 
regular after-school association with their classmates, were required to 
forego such opportunities as school patrol and assistant libarian, and 
were curtailed in their participation in the glee club, the band, and the 
drama society {infra, Appendix pp. 27 to 29).



8

Finally, in determining the propriety of the liquidated 
damages clause, it must be remembered that defendants’ 
reluctance to conclude the settlement agreement was avow­
edly because of Dr. Barnes’ race—-the very fact which 
later led defendants to offer him a “ hidden” and unequiv­
alent lot and thus breach their agreement. In the antici­
pated possibility of non-compliance by the defendants 
there was thus an additional racial ingredient. Having 
consented to delay in the transfer of a home by defend­
ants until just before the opening of the 1962 school year, 
it was reasonable for plaintiff to include in the injiiries 
redressable by the liquidated damages, that default by 
defendants would likely be occasioned (as it ultimately 
was) by invidious racial discrimination. The insult and 
indignity of such a breach was properly an ingredient of 
the substantial liquidated damages, since racial discrimi­
nation is no less serious a personal injury for being diffi­
cult to measure in monetary terms.

# # # * * *  *

Plaintiff’s special damages from the defendants’ delay 
in this case are certainly substantial, and they were clearly 
foreseeable at the time the settlement agreement was con­
cluded. Thus, the agreement itself {infra, Appendix p. 
17) predicated the liquidated damages expressly upon the 
losses “ that will be suffered by Barnes and his family in 
not obtaining . . .  a substantially equivalent house prior 
to the opening of the 1962-63 school year.” And the na­
ture of these damages was clearly set forth in the earlier 
communication of October 19, 1961 from plaintiff’s attor­
ney, a copy of which was received by defendant Sind on 
October 27, 1961 (Plaintiff’s Exhibits 10 and 11) which 
stated in pertinent part:



9

“ The purchase of this house and lot is a matter of 
substantial importance to the Barnes family. Mr. 
Barnes is employed by the Montgomery County Board 
of Education and works in the Rockville area. His 
twT0 children attend school in Rockville. The house 
on Charen Lane which Mr. Barnes purchased will 
materially improve the quality of life of the Barnes 
family. Not only will it avoid daily burdensome trans­
portation, but even more so it will make it possible 
for the Barneses to live in the community where Mr. 
Barnes works and where the Barnes children go to 
school and thus integrate their lives into the commu­
nity where they spend their days.”

Considering the monetary, professional, and racial im­
plications of a breach of defendants’ all-important prom­
ise to make occupancy available to the Barnes family be­
fore August 31, 1962, it was certainly reasonable for the 
settlement agreement to include a substantial liquidated 
damages clause. True, $100 a day was a large figure, but 
the period of 150 days after which no further accumula­
tion of liquidated damages was to ensue was correspond­
ingly short: thus, had the daily figure been set instead at 
$20 without a cut-off, to present date there would have 
been accumulation of the same $15,000 under the liquidated 
damages clause. Taken in its entirety, including (1) the 
calculable $21 of daily special damages, (2) the loss for 
Dr. and Mrs. Barnes of the professional opportunity of 
association after school hours with their school commu­
nity and colleagues, (3) the anticipatable racial insult of 
the defendants’ breach, and (4) the short period during 
which the liquidated damages were to accumulate, it seems 
clear that the liquidated damage clause set by the parties 
was not unreasonable, and that accordingly it should have 
been honored by the District Court.



10

Conclusion
It is respectfully urged that the Court should remand 

this case for appropriate corrections in the decree in ac­
cordance with the principles above set forth.

Respectfully submitted,
J o se ph  L. B atth, J r ., 
J o h n  S ilard ,

1625 K Street, N.W., 
Washington 6, D. C., 

Attorneys for Appellant.



APPENDIX

T able oe C o n ten ts
Page

C o m pla in t  fob  B reach  of C ontract and S pe c if ic

P erform ance  ............................................................................. 1
E x h ib it  A — A d v er tisem en t , W a sh in g to n  P ost,

O ctober 7, 1 9 6 1 ..............................................................  • '
E x h ib it  B — P u rch a se  A g r e e m e n t , O ctober 9,

1961 ..................................................  12
E x h ib it  C— A g reem en t  of S e t t l e m e n t , J a n u ­

ary 9, 1 9 6 2 ..........................................................................  15
E xcerpts  from  T r a n sc r ipt  of T e stim o n y  of Dr. and

M rs . B a r n e s .................................................................................  19
P l a in t if f ’s A n sw ers  to Q u e st io n s  N ot A n sw ered  at

D epo sitio n  on  N ovember 29, 1 9 6 2 ...................................  34
O p in io n — J udge R oszel  C. T h o m s e n .................................. 35
D ecree  ...............................................................................................



APPENDIX

October 25, 1962

I n  t h e  U n it e d  S tates D istrict  C ourt for  t h e  D istr ic t  of
M aryland

Civil No. 14,155

R oland E. B arn es , 310 A lliso n  S t r eet , N.W., W a sh in g t o n ,
D. C., Plaintiff,

v.
A. S in d  & A ssociates, a C orporation , 8226 F e n t o n  S tr eet , 

S ilver  S p r in g , M aryland , and  A braham  S. S in d , 3716 
K e n il w o r t h  D rivew ay , C h ev y  C h a se , M aryland , and  
I srael C o h e n , 6411 E ast H albert R oad, R eth esd a , M ary­
land , Defendants.

C o m pla in t  U nder  28 U.S.C. 1332, 2201, 2202 for  Breach  
of C ontract and S p e c if ic  P erform ance

Comes now plaintiff and for his cause of action herein 
alleges as follows:

1. This is a civil action for monetary, declaratory and 
equitable relief, based upon 28 U.S.C. 1332 and 28 U.S.C. 
2201, 2202. The amount in controversy exceeds Ten Thou­
sand ($10,000) Dollars exclusive of interest and costs.

2. Plaintiff is a citizen and resident of the District of 
Columbia, residing* at 310 Allison Street, N.W., Washing­
ton, D.C.

3. Defendant A. Sind & Associates is a corporation in­
corporated in the State of Maryland and having its prin­
cipal place of business at 8226 Fenton Street, Silver Spring, 
Maryland. Defendant Abraham S. Sind, a citizen and resi­
dent of Maryland, is principal stockholder and owner of 
the defendant corporation, and resides at 3716 Kenilworth 
Driveway, Chevy Chase, Maryland. Defendant Israel

( 1 )



Cohen, a citizen and resident of Maryland, resides at 6411 
East Halbert Road, Bethesda, Maryland.

4. Plaintiff, a Negro, has been employed in the school 
system of Montgomery County at Rockville, Maryland, for 
the past three years. He is Principal of the Travilah Ele­
mentary School located near Rockville, Maryland. In addi­
tion to spending his regular working hours at the school 
near Rockville, Maryland, plaintiff or his wife must daily 
transport his children to and from Rockville, where they 
are enrolled at the West Rockville and Richard Montgomery 
Schools. Plaintiff’s wife is employed by the Montgomery 
County School Board as a specialist in giving assistance 
to partially seeing children and has her office in Rockville, 
Maryland.

5. Plaintiff’s residence in the District of Columbia is 
some 22 miles from the place of his employment near Rock­
ville. The transportation of plaintiff, his wife and his chil­
dren to and from Rockville each day is a great burden 
upon plaintiff and his family. Plaintiff cannot fully per­
form his functions as School Principal while he is so dis­
tantly separated from the area from which his school draws 
its student population, and his wife and children suffer 
from employment and school life in one area and home life 
in another. For these reasons, on or about August 1961, 
plaintiff decided to purchase a home in Montgomery County, 
Maryland.

6. On October 7, 1961, plaintiff read an advertisement by 
defendant A. Sind & Associates in the Washington Post- 
Times Herald inviting the public to examine and purchase 
homes in the “ Georgetowne Hill” area in Montgomery 
County. A true copy of said advertisement is attached to 
this Complaint as “ Exhibit A ” and made a part hereof. 
The advertisement indicated the availability of homes in 
the GeOrgetowne Hill area, including four different models 
ranging in price from $22,950 to $25,990.

7. On October 9, 1961, pursuant to and relying upon the 
representations by defendant A. Sind & Associates con­
tained in said advertisement, plaintiff visited the George­
towne Hill area to examine and to seek to purchase, if 
found suitable, one of the homes advertised for sale. This 
area is approximately eight miles from plaintiff’s place of



employment and it takes about twelve minutes by car from 
this area to plaintiff’s place of employment; the mileage 
and time are approximately five miles and nine minutes to 
plaintiff’s wife’s place of employment and to plaintiff’s 
children’s schools.

8. The individual defendants, acting directly and through 
and in the name of the corporate defendant herein, are the 
owners, builders and developers of the said ‘ ‘ Georgetowne 
Hill” area. Prior to October 9, 1961, they had retained as 
their sales agent for the “ Georgetowne Hill” properties 
the firm of Harmony Corporation, a real estate agency in­
corporated in the District of Columbia. They caused the 
advertisement upon which plaintiff relied (Exhibit A) to 
be placed in the Washington Post-Times Herald.

9. On October 9, 1961, plaintiff arrived at the George­
towne Hill location, examined three of the model homes on 
display and then visited the office maintained at that loca­
tion by the Harmony Corporation, where he met Mr. H. 
Glenn, an employee and sales agent of Harmony Corpora­
tion. Plaintiff informed Mr. Glenn that he was ready to 
purchase the “ Georgetowne Model.” Mr. Glenn, with both 
the authority and apparent authority of the defendants, 
the owners, builders and developers of the Georgetowne 
Hill properties, showed plaintiff various available locations 
where the “ Georgetowne Model” house was to be con­
structed and plaintiff then selected, with Mr. Glenn’s assist­
ance, Lot 9 in Block 3 as the desired location for his home.

10. After plaintiff selected the model and location afore­
said, Mr. Glenn drew up a formal contract for the purchase 
of said model and location, in which he inserted the “ esti­
mated delivery” date of “ March 15, 1962.” Plaintiff gave 
Mr. Glenn as a deposit a check in the amount of $200 and 
a personal note in the amount of $800, making a total of 
$1,000, the required deposit stated in the contract. Pur­
suant to Mr. Glenn’s instructions, plaintiff signed three 
identical copies of the contract. Mr. Glenn also signed the 
three copies, acting as agent for defendant A. Sind & Asso­
ciates. Mr. Glenn then gave plaintiff a copy, saying, “ You 
keep one copy of the contract; the other two I turn in to the 
office.” A true copy of said contract is attached to this 
Complaint as “ Exhibit B” and made a part hereof.



4

11. On October 11, 1961, plaintiff received by mail from 
the Harmony Corporation the $200 check and the $800 note 
he had given on October 9, with a notation stating, “ We 
are sorry but this deal cannot be consummated at this 
time.” Subsequent inquiry with the Harmony Corporation 
revealed defendants to be the owners, builders, developers, 
and sellers of the property involved and that they refused 
to go forward with the contract of sale solely because plain­
tiff is a Negro.

12. On October 27, 1961, plaintiff, through his attorney, 
informed the defendants that it was “ utterly clear that the 
fact that Mr. Barnes is a Negro and no other fact, has 
caused your refusal” to carry out the contract of October 9, 
1961, and made demand upon the defendants to honor and 
go forward with the contract of October 9,1961. As a result 
of that demand, a representative of the defendants met with 
plaintiff’s counsel on November 17, 1961, and the individual 
defendants and their counsel met with plaintiff and his 
counsel on November 28, 1961. At both meetings the de­
fendants and their representatives repeatedly made clear 
that they could not carry out the contract of October 9, 
1961, solely because plaintiff was a Negro. The defendants 
and their representatives asserted that plaintiff’s residence 
in the project of 42 houses which defendants were building 
might cause defendants to lose their financing, bring the 
public authorities down on defendants on such matters as 
zoning, sewer and water and the like, and cause potential 
buyers to go elsewhere. Discussion was had of alternative 
methods of settling the dispute, including a delay in plain­
tiff’s moving into the house covered by the contract of 
October 9, 1961, or the defendants finding plaintiff an 
equivalent house in the general Rockville area. Discussions 
continued through December 1961 without an agreement 
being reached.

13. On January 2, 1962, plaintiff’s counsel addressed a 
letter to defendants’ counsel, as follows:

“ On January 9th three months will have elapsed 
since Mr. Barnes signed the agreement for the George­
town Hill house and we do not intend to permit fur­
ther delays in resolving this matter. Although we



0

sent you a settlement agreement on December 16th 
signed by Mr. Barnes, your clients have refused either 
to sign same or make any suggestions as to what they 
would sign.

“ Our client, Roland E. Barnes, will file suit in the 
Federal District Court in Baltimore, Maryland, the 
morning of January 9th unless the matter is resolved 
by an executed agreement between the parties prior 
to that time. We will hold ourselves in readiness to 
meet with you at any time between now and January 
9th if you so desire. We will not, however, postpone 
the date of filing suit any farther.”

This settlement deadline of January 9, 1962 was reempha­
sized in another letter from plaintiff’s counsel to defend­
ant’s counsel on January 4, 1962.

14. On January 8, 1962, defendant Cohen telephoned 
Joseph L. Rauh, Jr., one of the attorneys for plaintiff, and 
stated that defendants would agree to a settlement along 
the lines previously suggested by plaintiff and asked for a 
further postponement of any suit by plaintiff. Rauh re­
fused the postponement. Defendant Cohen then asked Rauh 
if he would meet with him that evening and Rauh agreed to 
receive Cohen at his home that evening. At a lengthy eve­
ning conference at Rauh’s home on the evening of January 8, 
1962, punctuated by calls by defendant Cohen to defendant 
Bind, the text of a settlement Agreement was agreed upon. 
On the morning of January 9, 1962, the individual defend­
ants appeared at Rauh’s office in the District of Columbia 
and read and signed the settlement Agreement, a true copy 
of which is appended hereto and made a part hereof as 
“ Exhibit C.”

15. The Agreement of January 9, 1962 was signed by 
plaintiff, by defendant Cohen, and by defendant Sind both 
for himself and on behalf of A. Sind & Associates. The 
Agreement (paragraph 6) obligated defendants, by no later 
than August 31, 1962, to deliver to plaintiff “ a completed 
house on Lot 9 in Block 3” as provided “ in the house pur­
chase document of October 9”, or “ an identical house on 
an equivalent lot” in the project of 42 houses being built



6

by defendants. The Agreement made the question of lot 
equivalence arbitrable, by Morris D. Schwartz, counsel for 
defendants, Joseph L. Rauh, counsel for plaintiff, and a 
third arbitrator to be chosen by them or as otherwise pro­
vided in the Agreement.

16. At the time of the signing of the Agreement of Janu­
ary 9, 1962, defendant Sind demanded a deposit from plain­
tiff of $1,000 in cash, which amount was delivered to Sind 
on January 16, 1962, to be applied to the purchase price of 
the house to be delivered to plaintiff under the Agreement 
of January 9, 1962. Said deposit is still in the possession 
of defendants.

17. One of the first houses sold by defendants in their 
project of 42 houses was on Lot 9 in Block 3 (11820 Charen 
Lane, Rockville, Md.). Defendants sold said house and lot 
to one David E. Bierer, who took same with full notice of 
defendants’ Agreement of January 9, 1962, and without 
making any effort to make certain that defendants were 
reserving for plaintiff an identical house on an equivalent 
lot. Defendants sold said house to Bierer in bad faith, 
without reserving an identical house on an equivalent lot 
for plaintiff, as they were obligated to do under the Agree­
ment of January 9, 1962.

18. On July 31, 1962, defendant Cohen escorted plaintiff 
and his wife to the Georgetowne Hill project and offered 
plaintiff 11801 Charen Lane as defendants’ purported ful­
fillment of the Agreement of January 9,1962. Plaintiff and 
his wife immediately told defendant Cohen that the prof­
fered lot was in no way equivalent to Lot 9 in Block 3 
(11820 Charen Lane). Defendant Cohen stated to plaintiff 
and his wife that he was not obligated to provide an equiva­
lent lot, but simply to provide a house and lot within the 
project of 42 houses which defendants were building.

19. On August 2, 1962, Rauh addressed a letter to Morris 
D. Schwartz, who had been named as co-arbitrator in the 
Agreement of January 9, 1962, stating that the lot offered 
plaintiff was in no sense equivalent to Lot 9 in Block 3. 
In the letter plaintiff requested immediate arbitration re­
garding the equivalence of the proffered property to Lot 9 
in Block 3, as provided in the Agreement of January 9, 1962.



7

20. On August 6, 1962, Schwartz told Rauh by telephone 
that he would be read}?* to inspect the property very 
promptly. On August 13, 1962, Schwartz told Rauh by 
telephone that he was considering declining to act as arbi­
trator and would let Rauh know promptly. On August 15, 
1962, Schwartz wrote Rauh “ declining to act as an arbi­
trator under that agreement.” On August 16, 1962, 
Schwartz having declined to act as arbitrator, Rauh wrote 
Schwartz requesting that defendants “ designate an arbi­
trator at once so that the matter of the equivalence of the 
lot offered to Lot 9 in Block 3 can be promptly resolved.” 
No such arbitrator has ever been designated by defendants.

21. On August 23, 1962, plaintiff offered to accept 11823 
Charen Lane, an unsold house in the defendants’ project 
of 42 houses, as settlement of defendants’ obligations under 
the Agreement of January 9, 1962. Although 11823 Charen 
Lane is clearly not equivalent to Lot 9 in Block 3, it is the 
closest to equivalence of the properties in the said project, 
and plaintiff offered to accept it as equivalent if plaintiff 
“ received $2,000 for fencing, landscaping, and trees to bring 
the two lots closer to equivalence”, and if defendants 
“ covered the attorneys fees that he incurred through no 
fault of his own.” By letter dated August 24, 1962, de­
fendants refused to name an arbitrator or to consider plain­
tiff’s offer to accept 11823 Charen Lane on the specified 
conditions.

22. On August 27, 1962, plaintiff’s attorney wrote de­
fendants’ attorney once more stating that he understood 
defendants’ position to be (i) that Schwartz would not 
serve as arbitrator, (ii) that defendants would not desig­
nate another arbitrator, and (iii) that defendants would 
not offer any other house. This letter has not been an­
swered.

23. The lot offered plaintiff (11801 Charen Lane) is not 
equivalent to Lot 9 in Block 3 (11820 Charen Lane). The 
lot offered plaintiff is approximately one-third smaller in 
square footage than Lot 9 in Block 3; it has no natural 
growth of trees such as those on Lot 9 in Block 3; it is 
lower in elevation; and it is crowded by adjoining houses 
whereas Lot 9 in Block 3 is on the outer perimeter with a



8

wide barrier of trees separating it from adjoining open 
land.

24. Plaintiff has at all times stood ready to arbitrate the 
equivalence of the lots as provided in the Agreement of 
January 9, 1962, and defendants have at all times refused 
to do so.

25. Notwithstanding the repeated requests by plaintiff 
that the defendants go forward with their Agreement of 
January 9, 1962, by arbitration and by offering and deliver­
ing to plaintiff a completed house on Lot 9 in Block 3 or an 
identical house on an equivalent lot, as provided for by the 
Agreement of January 9, 1962, defendants have at all times 
failed and refused to do so. These failures and refusals by 
the defendants, constitute gross violations of their Agree­
ment of January 9, 1962 with the plaintiff, on account of 
which plaintiff is entitled to legal and equitable redress.

26. The refusal of the defendants, as aforesaid, to go 
forward with their Agreement with the plaintiff, as afore­
said, was a willful and deliberate disregard by the defend­
ants of their contractual undertaking. Defendants delib­
erately flaunted their contractual undertaking and took 
steps to provide assurance against compliance with its 
terms. Defendants sold Lot 9 in Block 3 without reserving 
an identical house on an equivalent lot for plaintiff. De­
fendant sold other houses at will and without any such 
reservation. At the last moment, defendants offered plain­
tiff a lot which was in no sense equivalent to Lot 9 in Block 3 
and, recognizing this, refused even to arbitrate the issue of 
equivalence as they were legally obligated to do.

27. By reason of the aforesaid violations of contract by 
the defendants, plaintiff has been irreparably injured. 
Plaintiff has no adequate remedy at law for such injury.

W h e r e fo r e , plaintiff p r a y s  that this Court take juris­
diction over this action and award the following several 
forms of relief to the plaintiff:

1. Affirmative declaratory and injunctive relief in the 
nature of specific performance, requiring the defendants 
to coniply with the terms of the Agreement of January 9, 
1962.



9

2. Requiring the defendants, by affirmative injunctive 
relief, to deliver to plaintiff a completed house on Lot 9 
in Block 3 of the type and at the price and terms set forth 
in the house purchase document of October 9, 1961, or an 
identical house on an equivalent lot in the project of 42 
houses built by defendants.

3. Requiring the defendants to pay to the plaintiff liqui­
dated damages pursuant to paragraph 7 of the Agreement 
of January 9, 1962, computed at the rate and in the manner 
therein set forth.

4. Awarding to the plaintiff compensatory damages for 
breach of contract in the amount of Thirty Thousand 
($30,000) Dollars.

5. Prohibiting defendants pendente lite from selling 
11823 Charen Lane, Rockville, Maryland.

6. Such other and further relief as the circumstances 
may warrant.

Respectfully submitted,
E ug en e  M. F ein b h a tt , 

American Building, 
Baltimore, Maryland.

J o seph  L. R a u h , J r .,
J o h n  S ilabd ,

1625 K Street, N.W., 
Washington 6, D. C. 
Attorneys for Plaintiff.

A ffidavit

Comes now Roland E. Barnes and being duly deposed 
and sworn states as follows:

1. I am the plaintiff in a civil action against A. Sind 
& Associates and others, which is being filed on my 
behalf in the United States District Court for the 
District of Maryland. I have read the complaint signed 
by my attorneys on my behalf.
2. I affirm the truth of the facts set forth in para­
graphs 14, 17 and 20 of said complaint on information 
and belief.



10

3. I affirm the truth of each statement of fact set forth 
in the remaining paragraphs of the complaint.

( s )  B oland  E. B a r n es .

Sworn to before me and subscribed in my presence this 
25th day of October, 1962.

(s) M ary C. A ssay,
Notary Public.

My commission Expires Dec. 31, 1962

(Seal.)
A ffid a v it

Comes now Joseph L. Bauh, Jr. and being duly deposed 
and sworn states as follows:

I have read the complaint signed by me as Attorney 
for Boland E. Barnes in a civil action by Barnes 
against A. Sind & Associates et al in the United States 
District Court for the District of Maryland. Each of 
the statements of fact contained in paragraphs 12, 13, 
14, 15, 16, 19, 20, 21 and 22 of said complaint is true 
and correct.

( s )  J o se ph  L. B a u h , J r .

Sworn to before me and subscribed in my presence this 
25th day of October, 1962,

( s )  M ary C. A ssay,
Notary Public.

My Commission Expires Dec. 31, 1962 

(Seal.)



11

A SPECIAL INTRODUCTORY PRICE ON THE BIGGEST

AIR-CONDITIONED 2-STORY COLONIAL IN BETHESDA

4 BEDROOMS ON ONE FLOOR, FIRST-FLOOR FAM

ILY ROOM, 2 V2 BATHS, FULL BASEMENT, CARPORT,

FIREPLACE, AUTOMATIC WASHER AND DRYER IN

CLUDED

It is hard to imagine the colonial 
atmosphere and Georgetown flavor 

xtf this lovely community without seeing it.
I t  is hard to describe the 

• spectacular value, other than to say 
that eveything listed above, 

everything you could wish for, 
is included in the price. 

Three floors of privacy with 4 bedrooms 
on one level, a center hall foyer, 

panelled family room or 
library on the first floor, full basement, 

carport, fireplace, 214 baths, 
automatic laundry center included, 

air conditioning included- A magnificent 
home in a new Bethesda community 
with its own schools, swimming pool, 

close to golf courses 
and country clubs

Other Introductory Prices
* Rethesdan R am bler  . . .  irulit 

U niversity House Sp lit Level 
Surrey Split Loser R am bler .

air conditioning a t S22.U50 
. includes air conditioning: at '2  
includes air conditioning at >2.\2~>0

Westlnghouse dishwasher?, automatic washers, automatic 
dryers, disposers. rve-W rl ovens, counter ranges and 

re irise ra ’ors . , . all included m  the price.

Interiors by J, Lomkurgh„ 9ih <§ f  Si, N,W. 
Builders & Developers: A. SMB & ASSOCIATES

Dp
- I T C B - a - m
X j ______ -L i-



12

Type Loan.
HARMONY CORP.

T. N. LERNER, President
«406 GEORGIA AVENUE, N.W. WASHINGTON 12, 0. C

&ecetbeb from ,.
(Street Address) __ C

(Phone)_(State)
_Dollars ( $ - / + .  J U L ll____ )a deposit o/__b" «__2___ _

(Cash) fCheck) to be applied as part payment of the purchase of Lot____
—, with improvements thereon known as___

------------- ________________ ______________ rSHa______________
upon the following terms of sale: /  /

(1) Price _.y. /%***
(2) Purchaser agrees to payCE.1^^_Tt.x.'+s. A£*«~- *&■■/ **..

cash at the date of conveyance, of which sum this deposit shall be a part.
(S) The purchaser is to negotiate, procure and place a first deed of trm

j  /Q*4***~-*-- / wwk- *■ ‘j-€t & i _ _ _
bearing interest at the rate of___ ___________________ ____ ________
per cent per annum or at the maximum prevailing rate at the time of closing, payable $ /  3 . , .̂, _________ ,
or in such amount as may be necessitated by virtue of an increase in interest rate as aforesaid, per month, includ­
ing principal and interest, but not including taxes and insurance, and shall make prompt application therefor, with 
suchlending agency or institution as shall meet with the approval of seller; the proceeds of such first trust shall be 
applied towards payment of the aforesaid purchase price. The balance of the purchase price shall be paid by pur­
chaser to seller in cash at time of settlement. ^

(i )  For the balance of deferred purchase money amounting t o ____________ ______I ____

in  Block.

Montgomery County, Maryland

U.. Dollars ($~„i.Ji. 
. —Dollars (*_

Dollars ($.
purchaser is to execute and deliver a second deed of trust secured on said premises, to be paid in monthly install­
ments of—  ---------------------------------- _•--------------------------------------------------------Dollars ($___ ______ _____ ) K
or more, including interest at the rate of— ------------ -------- ---------- per cent per annum, each installment when so
paid to be applied, first to the payment of interest on the amount of principal remaining unpaid and the balance 
thereof credited to principal____ _________________________________

Trustees in all deeds of trust are to be named by the parties secured thereby.
(5) The seller agrees to complete upon the aforesaid premises a dwelling substantially similar, as to workmanship, material,

type of construction and finish, to the interior and exterior of seller’s model house known as Lot____ _____ , Block _ _ _ , which
model house has been inspected by the purchaser. The seller reserves the right to make such changes or substitutions in the con­
struction as may be required, authorized or approved by the lending institution, by F.H.A., V.A. or by other Governmental Agencies 
having jurisdiction thereof. Lot grades, lot area, and locations of walks and driveways, may not necessarily conform to those of 
the aforesaid model house. \

(?) The property is sold free of encumbrance, except as aforesaid; title is to be good of record, subject, however, to covenants, 
conditions and restrictions of record, otherwise the deposit is to be returned and sale declared off at the option of the purchaser!

°n that thuey may readiIy b? remedied by legal action, but the seller and Agent are hereby ex­pressly released from all liability for damages by reason of any defect m the title. In ease legal steps are necessary to perfect the 
title, such action must be taken promptly by and at the seller’s expense, whereupon the time herein specified for full settlement by 
the purchaser will thereby be extended for the period necessary for such action. 3

on the deed --------- ------ ----------  ° u w u ,  «uu w  pay xui r  eucrai revenue stamps

(8) Seller agrees to give possession at time of settlement. If seller shall fail so to do and occupies said property, seller shall 
become and be thereafter a tenant at sufferance of the purchaser, and hereby expressly waives all notice to quit provided by law.
•  ̂ ,(-9) ?ei lef , assum?s the ri!*  of loa5 or damage to said property by fire or other casualty until the executed deed of conveyance is delivered to the purchaser or is recorded for him by the Title Company making the settlement. *

(1°) All notices of violations of County or State orders or requirements noted or issued by Montgomery County or the State of 
Maryland or prosecutions m any of the courts of the State of Maryland, or elsewhere, on account thereof against or affecting the 
property at the date of settlement of this contract shall be complied with by the seller and the property conveyed free thereof, with 
the exception of the means of egress regulations. This provision shall survive the delivery of the deed hereunder.

Settlement is to be made at the office of the Agent or at the Title Company searching the title, and deposit with the Agent
Of HL™LCaŜ paymfent.?S aforesaid> tbe deed of conveyance and such other papers as are required by the tennsof this contract shall be deemed and construed as a good and sufficient tender of nerformance of the terms herenf

(1f ) j It is agreed that the furniture and furnishings contained in any model house are for exhibition purposes only and are not included in the purchase unless otherwise expressly provided herein. purposes oniy ana are

, J 16> Tb« costs. incident to the installation of house connection to sewers, curb and gutter, sidewalks and streets shalfbe borne 
by the seller if required to be installed prior to settlement of this contract by the appropriate governmental authorities,' but this 
shall not be construed to relieve purchaser of his liability to assume and pay the annual benefit charges of the Washington Suburban
Sanitary Commission as set out In paragranh 19 hew



16

, ,  .  ,  ,  "«=»--------u m u v w  *»/ v**v u v u v <  t w* m  »  * v a u  «o w u i u u b w u  w /  o u v u  t v t t u u t g  i» g v .u v ; Vfc «WVtW»V*W« "

the lender shall thereafter refuse to consummate the loan by reason of non-performance of any conditions of such commitment within 
tne period of tune prescribed for such performance under the provisions of the commitment, or if said Lender refuses to consummate 
and make the loan for any other reason either before or after commitment is issued, the seller shall have the right at its option to 
cancel and terminate this agreement and refund to the purchaser the deposit hereinbefore mentioned; or, at the seller’s option, the 
purchaser shall have the privilege of obtaining the first trust loan from other sources, if the lending agency or lending institution 
named by seller refuses to make such loan. In no event shall seller have any obligations or liabilities to purchaser hereunder on ac­
count of the Lender s refusal to make such loan, for any reason whatsoever, other than the obligation of refunding to purchaser the 
deposit made by him hereunder as aforesaid. Seller shall not be liable for damages whatsoever by reason of delays in completion 
of said improvements.

. CW .^ke entire deposit, whether paid to agent or seller, shall be held by seller until settlement hereunder is made or until the 
deposit is forfeited. In the event of the forfeiture of the deposit, the Agent shall receive from the seller one half thereof as a com­
pensation for his services.

the property is serviced by the Washington Suburban Sanitary Commission, annual benefit charges of said Commission 
are to be adjusted to date of transfer and assumed thereafter by purchaser.

(20) Seller agrees to pay to HARMONY CORP., Agent, a commission amounting to $_________________ , the amount of which
said commission being hereby assigned to the Agent by the seller out of the proceeds of sale. The party through whom settlement 
nereunder is made is hereby authorized and directed to make deduction of the aforesaid commission from the proceeds of the sale 
and to make payment thereof to said Agent. ®
_ .P“rc^a,!er ^as the option of cancelling this contract and receiving back his deposit in the event construction is not
completed and title delivered withm approximately 365 days from the date of acceptance hereof by the seller, except for delay 
caused by perfection of title as described in paragraph 6 hereof, or except when a delay is occasioned by circumstances beyond the 
control of the seller, or as soon thereafter as a report on the title can be secured, if promptly ordered.
i « 2̂2  ̂ i P'-H.A. INSURED LOANS. This provision only applies when the Purchaser is buying with an F.H.A. Insured Loan. It 
is expressly agreed that, notwithstanding any other provisions of this contract, the Purchaser shall not be obligated to complete 
xne purchase of the property described herein or to incur any penalty for forfeiture of earnest money deposits or otherwise unless 
tne seller has delivered to the Purchaser a written statement issued by the Federal Housing Commissioner setting forth the ap-
praised value of the property for mortgage insurance purposes of not less than $___ _______________ _____, which statement the
seller hereby agrees to deliver to the Purchaser promptly after such appraised value statement is made available to the Seller.
, . . ^ e  Purchaser shall, however, have the privilege and option of proceeding with the consummation of this contract without regard 
to the amount of the appraised valuation made by the Federal Housing Commissioner.

(23) VETERANS ADMINISTRATION GUARANTEED LOAN. In the event that the Purchaser is a Veteran and is using 
a Veterans Administration Guaranteed Loan; it is understood that this contract is contingent on the approval of the property and the 
Purchaser by the Veterans Administration and the lending institution. If the aforesaid approval is not obtained it is expressly agreed 
that Purchaser shall be refunded his deposit.

I?.,the eye?t the property is completed any time within the time specified in paragraph 21 hereof, the purchaser agrees to 
make full settlement for this property within fourteen (14) days after the mailing of a notice from the seller or the agent to the pur- 

.  purchaser shall fail to make full settlement in accordance with the terms hereof, the deposit herein provided for may 
e ‘tfth e seller, in which event, the purchaser shall be relieved from further liability hereunder, or, without

forfeiting the deposit, the seller may avail itself of any legal or equitable rights or remedies which it ipay have under this contract.

The prlnc?P?̂ s *0 this contract mutually agree that it shall be binding upon them, their and each of their respective 
a fo r e s a ,^ ^ r«{,fnm,If1SKrat0rS’ sJ1“ ess0.rs a«d assigns; that the provisions hereof shall survive the execution and delivery of the deed 

«?difha 1 Iiot mf FP d tbeleln! that this contract contains the final and entire agreement between the parties hereto and 
tafned y h U * b® b°Und by any terms' conditions, statements, warranties or representations, oral or written, not herein’ con-

seller! *S dl8tlnctly underst°od and agreed that this contract cannot be assigned in any event, without the written consent of the

Purchaser agrees to pay the loan placement fee at time of settlement for the aforesaid loan. Executed in ____ ____ copies.

HARMONY CORP.

to b7our t o n t r £ rSi9ned’ mUfy’ aCCept to the,above memorandum of sale and acknowledge it

Parchaaer

Purchaser

Property is to be conveyed in the name of





15

E x h ib it  “ C ”

A g r e e m e n t

W h erea s  on October 9, 1961, Roland E. Barnes (here­
inafter referred to as Barnes) signed three copies of a 
document involving the “ purchase of Lot 9 in Block 3, 
Model G-eorgetowne, with improvements thereon known as 
Oharen Lane, Montgomery County, Maryland . . to be 
constructed by Abraham S. Sind, Israel Cohen and A. Sind 
& Associates (hereinafter referred to as Sellers and an 
employee of Harmony Corp. signed three copies of the 
same document (hereinafter referred to as the house pur­
chase document of October 9),

W hereas  there is a dispute between Barnes and Sellers 
as to whether the house purchase document of October 9 
is legally binding* upon Sellers,

Now, T h e r e fo r e , in full settlement of the claims of both 
parties and in consideration of Barnes hereby releasing all 
claims against Sellers under the house purchase document 
of October 9 or otherwise, it is agreed between Barnes 
and Sellers this 9th day of January, 1962, as follows:

1. Sellers agree to and will, on or before March 15, 1962, 
make available to Barnes a house substantially equivalent 
to the one covered by the house purchase document of 
October 9, with price and terms no less favorable to Barnes 
than those in the house purchase document of October 9.

2. The term “ substantially equivalent” in paragraph 
1 of this Agreement, shall mean substantially equivalent 
in value, in size and number of rooms, in proximity to the 
Rockville schools and community and in neighborhood 
facilities and surroundings.

3. The term “ make available” in paragraph 1 of this 
Agreement, shall mean that Sellers shall find a seller ready, 
willing and able to sign a contract with Barnes for the 
sale of a substantially equivalent house to Barnes.

4. Should the house made available to Barnes pursuant 
to paragraph 1 of this Agreement cost more than $25,990 
(the price in the house purchase document of October 9).



16

Sellers shall provide Barnes with the difference in purchase 
price.

5. If Sellers make a house available to Barnes under 
paragraph 1 and Barnes rejects the same on the ground 
it is: not substantially equivalent to the one covered by the 
house purchase document of October 9, this question of 
substantial equivalence may immediately be referred by 
either party to Joseph L. Rauh, Jr. and Morris D. Schwartz, 
attorneys for the respective parties, as arbitrators, and 
their decision as to whether the offered house is in fact 
substantially equivalent to the one covered by the house 
purchase document of October 9 shall be final and binding 
upon both parties to this Agreement. If Rauh and 
Schwartz are unable to agree, they shall name a third 
arbitrator; and if Rauh and Schwartz are unable to agree 
on a third arbitrator, Rauh shall select the Chief Judge 
of any court in this area to name the third arbitrator; 
and in either event the arbitrators’ decision as to whether 
the offered house is in fact substantially equivalent to the 
one covered by the house purchase document of October 9 
shall be final and binding upon both parties to this Agree­
ment. Sellers agree to pay for arbitrators’ services.

6. If Sellers fail to make available to Barnes on or be­
fore March 15, 1962, a substantially equivalent house pur­
suant to paragraph 1 of this Agreement, than and in that 
event Sellers shall become immediately obligated to Barnes 
to deliver to Barnes a completed house on Lot 9 in Block 
3 of the type and at the price and terms set forth in the 
house purchase document of October 9, except that Sellers 
shall have the option to make delivery: thereof at any time 
between March 15, 1962 and August 31, 1962 and except 
that Sellers shall have the further option to substitute for 
the completed house on Lot 9 in Block 3 as provided in 
the house purchase document of October 9, and to make 
delivery to Barnes prior to August 31, 1962 of, an 
identical house on an equivalent lot in the project of 42 
houses being built by Sellers of which the house covered 
by the house purchase document of October 9 is one the



17

question whether the lot is in fact equivalent to be arbi­
trable under paragraph 5 of this Agreement.

7. If Sellers do not perform the undertaking in either 
paragraph 1 or paragraph 6 of this Agreement by the times 
therein prescribed, then, in view of the damage which will 
be suffered by Barnes and his family in not obtaining by 
March 15, 1962 the house covered by the house purchase 
document of October 9' and in view of the further damage 
that will be suffered by Barnes and his family in not obtain­
ing that house or an identical house or a substantially equiv­
alent house prior to the opening of the 1962-1963 school 
year, Sellers jointly and severally agree to pay Barnes 
as liquidated damages for violation of this Agreement 
$100 a day for each day after August 31, 1962 that the 
completed house on Lot 9 in Block 3 or an identical house 
on an equivalent lot as prescribed in paragraph 6 is not 
delivered to Barnes: Provided, however, that liquidated 
damages under this Agreement shall not exceed $15,000.

In W it n e ss  W h er eo f  we have this 9th day of January, 
1962 set our hands and seal.

R oland  E. B a rn es ,
A. S in d  &  A ssociates, 
A braham  S . S in d ,
I srael C o h e n .

A ffid a v it

Comes now Doris Foster and being duly deposed and 
sworn states as follows:

1. I am a qualified real estate agent authorized to 
engage in the real estate business in the State of 
Maryland and Montgomery County, Maryland.
2. On August 1, 1962, pursuant to a request from 
Joseph L. Rauh, Jr., I went to the Georgetowne Hill 
area in Montgomery County to examine Lot 9 in 
Block 3 in said area (11820 Charen Lane) as well as



18

Lot 35 in Block 2 (11801 Charen Lane). Pursuant 
to my careful study of these two properties, I formed 
the conclusion, which I hereby affirm, that these two 
properties are in no sense equivalent because the last- 
mentioned property is considerably smaller in size, 
less attractive in shape, less well located and without 
the beautifying trees on Lot 9 in Block 3.

Sworn to before me and subscribed in my presence this 
25th day of October, 1962.

(s )  M aky C. A ssay,
Notary Public.

My commission expires December 31, 1962.

(Seal.)



19

[Tr. 82] Q. Mr. Barnes, could you tell us again the total 
distance you have been traveling from your home to your 
place of occupation during the week, in this last school 
year?
[Tr. 83] A. The distance from my house to the school 
is approximately twenty-two miles.

Q. And, I take it, you travel that twice a day, to the 
school and back to your home; am I correct?

A. Yes, so that the round trip would be at least forty- 
four miles.

Q. And approximately how long does it take you to 
travel those twenty-two miles; how do you travel?

A. Depending upon the traffic, the average time is forty 
to fifty minutes.

Q. And how do you travel that distance?
A. I drive.
The Court: Each way?
The Witness: Each way; yes, sir. I  drive to and from.
Q. How does your wife travel to school and back?
A. She also drives to and from school.
The Court: In the same car or a different one?
The Witness: In a different car, sir; usually, she has 

to transport the children as she goes and comes.
Q. What is the mileage she has to travel from her house 

to the place of her occupation?
A. The distance is approximately seventeen miles.
The Court: I thought you said sixteen the last time. 

Maybe we had better get this straight. What is it? [Tr. 84] 
At some point, I thought sixteen, and six with the difference, 
something like that. Is it seventeen or sixteen?

The Witness: Really, it probably varies with the route 
which is taken, sir.

Q. And would you state what your annual income was 
this year, as the principal of the school.

A. My income was $11,250.
The Court: You say $11,350?
The Witness: No; 250.



20

Q. And that of your wife ?
A. I am not, certain of the very exact figure; I think it 

is $7990.
The Court: Well she could probably-----
Mr. Pierson: What was that amount, again!
The Witness: It was $7990.
Q. Now, are you required, in connection with your duties, 

to travel to the school and back, during the school year, 
more than once a day, or on week-end days; or is that 
not something which occurs-----

A. This occurs frequently; I must make a trip back out 
in the evening or on week ends. Regularly, there are PTA 
meetings, PTA Executive Committee meetings, a Science 
Advisory Committee on which I serve, Principals Associa­
tion regular meetings and Executive Committee meetings, 
various affairs which take place in the school from time 
to time, [Tr. 85] which I must make a second trip back 
out to the school for.

The Court: Did you say what it averaged?
The Witness: I would say it averages about twice a week 

I need to return, other than the regular school days.
The Court: So it make about seven times a week.
The Witness: Seven times a week.
Now, do you need to make any additional child-care 

expense because of the commuting situation?
A. Yes; we do. There is a child-care expense for the 

person who looks after the younger girl from the time she 
leaves school until she can be picked up by my wife at 
approximately 4 :15 or so.

Q. And who does that child care; who is that person?
A. A person who lives in Rockville; her name is Mrs. 

Ambush.
Q. And what is it that you pay her?
A. At the rate of $5 a week for the past year.
Q. Are there occasions when your wife must return to 

school an additional time after school hours, or during 
the week ends, in connection with her professional duties?



21

A. There are many occasions; I would say at least an 
average of once a week she must return also.

Q. Are there occasions when, in connection with school 
functions taking place in the late afternoon or evening, 
extracurricular or semicurricular functions, it is necessary 
[Tr. 86] to take your children back for a second time 
during the day!

A. There have been many occasions; I do not know of 
an average except that, for the past four weeks, we have 
needed to return at least four times to their schools for 
activities in which they need to participate.

Q. Is there a method of transportation from your house 
to the Rockville area, other than by your private carl If 
so, what is it; how convenient is that?

A. You could get to Rockville from my house by taking 
three different buses. It probably would take about two 
hours or more to make the trip, provided you could get 
to the points at the scheduled times, and make your com 
nections right away. It would take at least two hours.

Q. Have you ever used that method of transportation?
A. I have never used i t ; no.
Q. Have the family, as far as you know?
A. My older daughter has used that method of returning 

to school on a few occasions when it was impossible for 
either my wife or me to take her out to a school activity 
or a school-sponsored activity.

Q. When you take one of your children to one of their 
evening school activities, is it possible to leave them there 
and have them transport themselves back; or is it neces­
sary for one of you to stay with them during the activity 
and take them back in the late evening?
! Tr. 87 | A. We need to stay with them in order to return 
them. I would not allow a sixteen-year-old to return alone 
on the bus at that time of night, any time after dark.

Q. Are there functions like PTA and the other profes­
sional functions you mentioned, which you would have 
attended this year if you had been living in the locality, 
but which the hour’s drive each way precluded you from 
doing during nonworking hours?



Mr. Pierson: Objection! It seems to me that is purely 
speculative.

The Court: Well, it is bound to be uncertain. I do not 
think he can say the exact number of times. But I think, 
unless you would prefer him to say them rather than to 
say that, on occasion, he has been unable to do it, it would 
necessarily follow that he would spend additional time in 
traveling; there are certain things he is not going to be 
able to do, on account of the fact that there is no travel 
time. What they are going to be, whether they are PTA. 
meetings or movies or what, this is something you cannot 
do. It is just that it inherently follows that the time and 
energy you spend in one thing you do not have to spend 
on something else.

Mr. Pierson: My understanding of the question was, 
Tour Honor, whether there were certain trips to the school 
he did not make, because of the distances involved, [Tr. 88] 
or whether he might not have made them. It seems to me 
that is pure speculation on his part, not to mention the 
fact that the question is leading.

The Court: Yes. Well, I will sustain it for the last 
reason, as a clearer one. I think it is rather close. He 
would have had to have driven the eleven miles, anyway. 
From his new home, if he had had it, he would have had 
to drive eleven miles to school; this is twenty-two miles. 
It is eleven additional miles. I think it is probably a jury 
question. I will sustain the objection as an inference of 
what a person would do.

Q. Well, has the necessity of driving back in the evening, 
this forty- or fifty-minute drive you mentioned additionally, 
interfered in any way with your functioning as a school 
principal in those semicurricular or evening activities a 
school principal is invited to attend?

Mr. Pierson: Objection, too, Your Honor. I think it is 
virtually the same question and, again, is misleading.

The Court: Well, you can ask him whether it has; then 
the question would be to what extent, if any, of the addi­
tional eleven miles you would have to drive prevented you 
from attending duties for which you are responsible, or



other activities you would like to attend, either or both 
or neither.

Mr. Pierson: With all deference to the Court’s [Tr. 89] 
phrasing of the question, I will renew my exception.

The Court: I will note the exception; I do not think it 
is leading.

Mr. Pierson: If he does not understand what is wanted 
by now, he never will.

A. There have been many occasions when I just did not 
feel like returning, because of the wear and tear of the 
normal trip. I have even missed some for which I should 
be required to attend, because I just was not able physi­
cally to make the second trip on the same day.

#  #  *  #  *  #  *

[Tr. 181] F rances J. B a rn es , a witness for the Plaintiff, 
was called and, having been first duly sworn, was exam­
ined, and testified as follows:

Direct examination.

By Mr. Silard:
Q. What is your home address, Mrs. Barnes!

[Tr. 182] A. It is 310 Allison Street, N.W.. Washington, 
D. C.

Q. And what is your relationship to the Plaintiff in this 
case?

A. I  am his wife.
Q. Mrs. Barnes, when were you first employed in the 

Montgomery County School System, and in what capacity?
A. I was first employed in August of 1960, as a special- 

education teacher at Peary High School.
Q. And how long did you remain so employed?
A. I remained employed there until (I think it was) 

the 16th of September, when I resigned.
Q. And what was the cause of your resignation?
A. The cause was that we were having difficulty making- 

arrangements for getting the children back and forth, get­
ting them taken care of at the end of the school day. We



24

trigd a number of things; but it was just impossible to 
work them out, because be was not in Rockville at the time.

This school is located down in the Aspen Hill section 
of Montgomery County; there were no families there whom 
I could get to take care of the youngsters in the after­
noons. It was just too much; so we decided that I would 
just have to give it up.

Q. Now, when did you nest become employed in the 
Montgomery County School System?

A. On May 1, 1961.
[Tr. 183] Q. And how was it that you became reemployed 
there?

A. Well, I was contacted by a member of the Board of 
Education, asking that I  please reconsider and see if there 
was not something which could be worked out so that I 
could come back.

At this time, they were very generous in the concessions 
. they gave me. I told them I could not come back full-time 
, at this time, because it still was the matter of having the 
youngsters looked after. So they made arrangements that 
I would not have to get there before ten o’clock in the 
morning, which meant that I could see that the children 
were off to school; and that I would only have to work 
until two o’clock in the afternoon, so that I could be home 
when they got in from school.

Q. Now, did you remain employed in that capacity since 
that time?

The Court: Was that back at Peary High School?
The Witness: No; that was not back at Peary High 

School. I was at the Board of Education in Rockville:
Q. Is that the capacity in which you have remained 

employed; or has it changed in some way?
A. No ; now I am a teacher-consultant in visual educa­

tion for visually handicapped children.
Q. At what locations do you actually do that work in 

the day?
[Tr* 184] A. I work out of the Monroe Center (they call 
i t ) ; that is the old Board of Education building in Rock­
ville. .<



25

Q. At what locations do you actually work during- the 
day?

A. Well, I go to different schools. I report to the Board 
in the morning; then I travel about the county, going to 
different schools. I have about fifteen or so schools which 
I am in and out of during the-— —

The Court: Beginning from the time you went back this 
year, you have been full-time, then.

A. No ; since August 1961, the beginning of the 1961- 
1962 school year, I have been full-time.

Q. And what arrangements, since August or September 
of 1961, have you made with respect to taking your children 
to school in the morning, returning them in the afternoon, 
then arrangements which may be required in between those 
hours ?

A. Well, I leave early and drop my high-school young­
ster at Richard Montgomery High School, which is maybe 
three blocks from my base office; then I take the younger 
child over to a Mrs. Ambush, who lives about four or five 
block’s from my youngster’s elementary school.

Q. What does she do with Mrs. Ambush?
A. She stays there until it is time for her to go to school. 

Then, at the end of the school day, she returns f Tr. 185] 
there until I can pick her up after four.

Q. Are you required to pay Mrs. Ambush anything for 
this ; service ?

A. Yes; I have to pay her.
Q. And what is it you have been paying her this year 

for that service?
Q. Well, since the youngster had music on Wednesday 

afternoons, there were only four days she was there most 
of the time; I paid her $5 a week.

Q. That is during this past school year that you. have 
been paying that.

A .  Yes; since she. has been there. . It is. two years now 
that this arrangement has been-----

Q. And when do you pick up your children at the close 
of your work day; what time in the day is that? .

A. Well, usually it is four-fifteen or four-twenty.



Q. And do you then take them back home!
A. I take them to Washington; yes.
Q. And by what means do you take them!
A. I take them by car. We have to have two cars, be­

cause of the working situation.
Q. And, when you take- your children back home at four- 

fifteen (or thereabout) in the day, have you then completed 
all the duties and meetings, professional activities, which 
are expected of you in your work situation!
[Tr. 186] A. No; there are professional meetings we are 
expected to attend. Then there are other meetings within 
the vision unit in which I work; we have extra meetings.

Q. And when are those extra meetings; at what hours!
A. Well, usually, they are seven-thirty, eight o’clock. 

So it means I go in, swallow down something to eat, 
freshen up, and start right back out again.

Q. Are there any of those meetings in the afternoon 
rather than in the evening!

A. Well, again, whenever the situation demands—I 
mean, they know: I have to pick up my children and get 
them back. So often, when possible, in the small pro­
fessional meetings (like for the unit), they will arrange 
so that the meeting can be later, so that I can get back 
out there.

The Court: Where is Allison Street, where you live!
The Witness: Allison Street is in the Petworth Section 

of Washington, D. C. It would be down about where the 
4600 or 4700 blocks would be, on those streets which run 
north and south.

The Court: Punning near what north-south street!
The Witness: It is off New Hampshire Avenue, between 

Third and Fourth.
The Court: So what do you do; go out New Hampshire 

Avenue!
The Witness: I go out New Hampshire Avenue to [Tr. 

187] Missouri; generally, in the morning, I go out Missouri 
to Sixteenth, up Sixteenth into Georgia Avenue, out Veirs 
Mill. In the afternoon, I come back a different way to 
break the monotony.



27

Q. What is the distance from your home to your place 
of work in Rockville?

The Court: Well, do you have to prove everything 
twice? I do not see any point, if her testimony is the 
same as her husband’s on distance.

Mr. Silard: Well, I am not sure this other thing is——
Q. What is the distance from the location where you 

work to the place where this Lot 9 in Block 3 is located?
A. Approximately five miles.
Q. Now, are there activities to which your children are 

invited after school hours, in connection with the school 
curriculum, or in which they participate?

A. Yes; I mean, there are a number of things : Of' course, 
the band concerts, the symphony concerts, the different 
recitals.

Q. Well, are your children active in any of those things 
themselves?

A. Well, they are rather inactive, because of this matter 
of having to g*et back out there.

Q. But what organizations do either of your children 
belong to out there, extra-curricular organizations?
[Tr. 188] The little girl is a member of the school band. 
She would like to have been on the school patrol; she was 
asked to be. But she could not get there in time; we could 
not be certain she would be there in time to be able to.

The Court: In the morning, you mean.
The Witness: Yes.
The Court: I  thought you said you left her at this lady’s 

house in the morning, because it was too early for her to 
go to school. I gathered that was the reason.

The Witness: Well, I  mean this is about eight-thirty. So 
they are not supposed to be at school until, I think it is, ten 
minutes of nine. So it is really not so early.

The Court: Well, when does the patrol go on duty?
A. They go somewhere between eight-thirty and nine, 

I guess. But I mean we are not certain she can get there 
on time; I try to.



28

Q. And this is the little girl you say is in the band.
A. This is the little girl.
Another thing: They wanted her to be chief assistant 

librarian; but, again, the teacher asked: ‘‘Are you going 
to be in it next year!” because, again, it is the matter of 
the early-morning time or the afternoon time.

Mr. Pierson: Your Honor, I think we are going hope­
lessly afield. We are now on the social life of the [Tr. 189] 
children, I think.

The Court: I  do not see how this could be recoverable 
damages in this case.

Q. What activities is your other child in!
Mr. Pierson: I  will object, Your Honor.
The Court: Well, I  will take anything in the record they 

want to put in ; but I am not going to pay attention to it, 
because I think it is immaterial. If they wish to put it in 
the record, I will take it, subject to exception. You can 
move to strike.

Q. What activities is your other child in (school activi­
ties) !

Well, she is in the glee club, the dramatic club at her 
school.

Q. Well, have your two children been able to establish-----
Mr. Pierson: Excuse me, Mr. Silard. I understand we 

have-----
The Court: Strike it out.
Mr. Silard: Your Honor, I would like to proffer that 

these are elements of-----
The Court: You go ahead. I said you can proffer any­

thing you want, subject to exception. I will strike it out 
if I think it is immaterial. Mr. Pierson rose again; I struck 
that out.

Mr. Pierson: I can do it either way; I can object 
[Tr. 190] or move to strike it out.



29

The Court: I understand the whole line is coming up 
at the end, subject to exception. At the end of the line, 
you can move to strike.

Mr. Pierson: All right.
Q. Have your children been able to participate fully in . 

the glee club, the band, and the drama society which you 
mentioned they belong to ; if they have not been able to 
participate fully, could you explain why.

A. Well, the same reason is that the distance is the 
matter of going into town, then having to come back, after 
having made the trip out and back again.

Q. Have you been able to make arrangements whereby 
the children can visit the houses of their friends after 
school hours in the afternoon and evening, on a regular 
basis ?

A. No.
The Court: What do you mean, “ on a regular basis” ?
Mr. Silard: Well-----
The Witness: There are no arrangements for them to 

stay with other people, other than Mrs. Ambush.
The Court: Unreasonableness can wear down sympathy.
The Witness: This is a paying situation.
Q. Now, Mrs. Barnes, I direct your attention to July 

of 1962; I ask-----
Air. Pierson: Just a minute, Mr. Silard. I will [Tr. 191] 

move to strike out all-----
The Court: Strike it out.
Mr. Pierson: That is all of the witness’ testimony per­

taining to the activities of her children.
The Court: Except those which have involved the ex­

pense of providing baby-sitting care, or what have you.
Mr. Silard: Your Honor, may I make a proffer of the 

grounds, why I believe this evidence to be relevant, before 
you make your ruling.

The Court: All right.



30

Mr. Silard: There is a liquidated-damages clause in the 
contract. We believe a critical question on the reason­
ableness of the liquidated-damage clause is whether there 
are elements of damage not easily ascertainable, hut which 
warrant fair appraisal by the parties, of what the damage 
on breach might be. We believe we have proof; we will 
further prove knowledge by the Defendants of this special 
form of damage.

The Court: Is it special damage to the children or to 
him?

Mr. Silard: I believe it is special damage to him, Your 
Honor. I would certainly argue that it is, and that it was 
so contemplated by the parties.

It seems to us, Your Honor, we would agree precisely, 
because we agree on the impossibility of the monetary 
[Tr. 192] assessment of these elements; we put them in 
the record because we believe they are the kind we can 
show were in contemplation in the liquidated-damages 
clause, and were the principal grounds why, unlike other 
situations, we had a situation here known to the Defendants, 
where there were particular damages to the Plaintiff and 
his family which warranted that kind of clause.

We believe this has been put in issue by the Defendants, 
Your Honor, who challenge the validity of the liquidated- 
damage clause. We believe we ought to be allowed to 
prove the kind of special damage appraisable.

The Court: Well, you have not proven that these partic­
ular matters were brought to the attention of the Defend­
ants. I think, insofar as it has validity, it is something 
which anyone would know necessarily followed. I mean, 
you can argue the point on something which is uncertain. 
But I am sure that, if you offer to prove that these specific 
items of damage were brought to the Defeiidants’ attention 
at the time of these discussions, all right; otherwise, I  think 
you have the general argument as to the inconvenience 
to the family as a whole being something which must have 
been known.



31

Mr. Silard: Well, Your Honor, we have already had 
testimony concerning the meeting of November 28, at which 
the Defendants were told of the burden upon the family, 
of [Tr. 193] this double life.

The Court I know; but you are talking about some­
thing in advance. Whatever was brought to their attention 
is something which might be considered as foreseeable 
damage. This is not a tort case; you are not suing them 
in tort. You are asking damages for breach of contract.

Breach of contract involves, as I understand it, some
sort of foreseeable damages. The specific damages-----
they have not been able to make arrangements for the 
children to visit friends on a regular schedule, or what­
ever is the question you asked—seems to me a matter which 
has not been proven, that it was brought to the attention of 
the Defendants at the time.

Mr. Silard: I may be making a mistake, Your Honor; 
but I had thought, if we proved (as we have in part, and 
as the agreement itself states) that the particular cause 
of concern was the double life the family was leading, 
we would be able to prove it was reasonable for us to 
assess the liquidated damages.

The Court: Well, you are proving two different things; 
there are two different elements you are talking about:

One is, if you are justifying your liquidated damages, 
it can only be on matters which have been brought to 
their attention, not on something which happened after­
ward.
[Tr. 194] If you are proving actual damages, it must be 
actual damages to the Plaintiff, not to his wife or children.

Mr. Silard: Well, Your Honor, we have three elements 
of proof that these types of losses were made known to 
the Defendants:

First, in a letter now in evidence, which was sent to 
them on October 27, 1961;

Secondly, at the meeting of November 28;
Thirdly, in the settlement contract itself, where the 

grounds were recited.



32

The Court: All right, they are all things which hap­
pened long before August 1962; she is telling me what 
happened since.

What has happened since August could not have been 
brought to his attention before then.

Mr. Silard: Well, the same situation prevailed at the 
very time.

The Court: Whatever was brought to his attention you 
may prove, as part of the justification you claim for liqui­
dated damages. But what has happened since August 1962 
cannot have been brought to his attention in June, specifi­
cally.

Now, what was brought to their attention generally by 
the letters may be and will be considered.

Mr. Silard: Well, in that case, Your Honor, since I was 
asking questions about the 1962-1963 school year, [Tr. 195] 
Your Honor is quite correct that this is a time subsequent.

May I be permitted to ask the same questions as to the 
1961-1962 school year, contemporaneous with the—

The Court: No; I do not care what actually happened, 
because the 1961-1962 school year is before the claim for 
damages under the contract could arise. The question 
there is what was brought to the attention of the Defend­
ants which might have been contemplated by them, either 
in preparing the agreement or at the time they allegedly 
broke it.

Now, it is what you communicate to them, not what 
the facts were.

* * * * * * *



I n  t h e  U n ited  S ta tes  D istrict  C ourt for  t h e  D istrict
of M aryland

Civil Action No. 14,155 
R oland E. B arn es , Plaintiff, 

v.
A . S in d  & A ssociates, e t  al., Defendants.

P l a in t if f ’s A n sw ers  to Q u estio n s  N ot A n sw ered  at 
D e po sitio n  on  N ovember 29, 1962

Comes now the plaintiff in answer to the questions pro­
pounded on November 29, 1962. The questions were not 
then answered because of proper objection by counsel to 
their scope and purpose under the discovery rules. Never­
theless, to obviate unnecessary delay and litigation, plain­
tiff now supplies his sworn responses to the questions 
earlier propounded:

1. Questions on page 51.
I have never asked for the return of the $1000 deposit 

made as an earnest of my performance of the agreement 
of January 9, 1962. I wish the deposit to be held by 
defendants until the case is decided and to be applied at 
that time to the purchase of a house from defendants if 
the decision of the Court affords me that opportunity.

2. Questions on page 50.
I can state, itemize and support with evidence a part of 

the damages suffered by me because of the defendants’ 
breach of contract. Such damages are based not only upon 
the additional travel expenses and loss of fair rental value, 
but they include also damages from my inability to secure 
anywhere in the Rockville area a new home in a modern 
development. As Mr. Sind himself has testified on depo­
sition, no such housing is now available to Negroes in the 
Rockville area. My losses thus include the monetary and 
other damages resulting from my inability to live in the 
area where I and my wife are employed and my children 
attend school.

I understand that the difficulty of determining exactly 
the monetary value of my damage was the reason that the



34

January 9, 1962 settlement agreement included a liquidated 
damage clause, upon which I am claiming relief in this 
action. I  can, however, approximate the value per day of 
four of the eight elements of damage which are listed 
below:

i. Fair rental value of property defendants have refused
to convey. $ 7.00

ii. Car, fuel and depreciation at 7fS a mile:
(a) my travel (additional 26 miles over that from

defendants’ development). 1.82
(b) my wife and children (additional 34 miles over

that from defendants’ development). 2.38
(above daily figure for 5 days a week is supplemented 
by an average of more than two extra trips a week to 
the school area in connection with school activities)

iii. Additional commuting time for me and my wife (1
hour per day extra travel time for each of us com­
puted at our hourly wage scales). 9.00

iv. Payments for child care after school hours before 
transportation available back to District of Columbia

$20.20 

$ 1.00

Total per day of exactly assessible items: 
(approximately $3,000 since August 31, 1962)

v. Legal expenses, costs, attorneys fees, etc. for litigation
of breach of contract.

vi. Curtailed opportunity to know and associate outside
school hours with my 14 co-workers all but one of 
whom live in Montgomery County.

Vii. Loss of opportunity for my maximum professional per­
formance as school principal, and in my wife’s per­
formance as school teacher, which require informal 
knowledge and relationships with children and 
parents of the school community not obtainable by 
those residing elsewhere.

viii. Inability of my children to associate with school mates 
on more than sporadic basis after school hours, and 
consequent curtailment of their opportunity to de­
velop significant fellowships.

$21.20

Not presently 
computable

Not exactly 
computable

Not exactly 
computable

Not exactly 
computable

R o la n d  E. B a r n e s .

Sworn to before me and subscribed in my presence this 
16th day of January, 1963.

Notary Public.
My Commission Expires :—



In t h e  U n it e d  S tates D istrict  C ourt for t h e  D istrict
of  M aryland

Civil No. 14155

R oland  E. B a rn es ,

v.
A braham  S. S in d  and  I srael C o h e n , P artn ers , T rading

as A. S in d  & A ssociates, and A braham  S. S in d  and
I srael C o h e n , I ndiv id u a lly .

Filed: November 12, 1963
Joseph L. Rauh, Jr. and John Silard, of Washington, 

D.C., and Eugene M. Feinblatt and Donald N. Rothman, 
of Baltimore, Maryland, for plaintiff.

Morris D. Schwartz, of Washington, D.C., and Edward 
Pierson, of Baltimore, Maryland, for defendants.

T h o m s e n , Chief Judge
Plaintiff seeks specific performance of an agreement 

with defendants dated January 9, 1962, and liquidated 
damages for delay in performing, or, in the alternative, 
compensatory damages.

Each side claims that the other entered into the agree­
ment in bad faith, and has unreasonably refused to per­
form or accept performance thereof. Defendant contends 
that the agreement is too vague to be specifically enforced, 
and that plaintiff failed to join as a party defendant the 
wife of Abraham S. Sind, who holds record title to the 
real property which plaintiff seeks to acquire by decree 
herein.

Plaintiff, a Negro, is and has been since May 1961 the 
principal of a school located about five miles from Rock­
ville, in Montgomery County. His wife is employed by 
the County Board of Education in Rockville. At all ma­
terial times they have lived at 310 Allison Street, N.W., 
Washington, D.C., about 16 miles from Rockville and about 
22 miles from the school.



36

Ilie complaint, as amended at the beginning of the trial, 
names as defendants Abraham S. Sind, Israel Cohen and 
Abraham S. Sind and Israel Cohen, partners, trading as 
A. Sind & Associates.

The individual defendants, Sind and Cohen, are asso­
ciated in several business ventures, including the develop­
ment of Regency Estates, the 189-acre tract involved in 
this case, which is located about 5 miles south of Rock­
ville. They are interested in a number of corporations 
which build houses and do office work for other companies. 
The name A. Sind & Associates has been used by Sind and 
Cohen, alone or in association with their wives or in asso­
ciation with others, to designate various partnerships and 
joint ventures connected with the developmnt of Regency 
Estates.

With money supplied by himself and one or more of his 
associates, Sind, as leader of the enterprise, purchased the 
189-acre tract. It was the purpose of defendants and their 
associates to develop the 189 acres (tract) in a series of 
subdivisions, the first of which appears on the plat offered 
in evidence as PX 6. It contains 67 lots, which vary in 
size from about 9,000 sq. ft. to about 15,000 or 16,000 sq, ft., 
but are intended to be of approximately equal value when 
grading, drainage, trees, etc., are considered. Sind took 
legal title to the entire tract in his own name although 
others had a beneficial interest in it. Sind and his wife, 
Judy Sind, conveyed eight of the lots in the subdivision 
to Palro Homes, Inc., a few additional lots to other builders, 
and one or two lots to individuals, usually with the under­
standing that Sind and Cohen or one of their corporations 
would build the houses on the lots.

Sometime before October 1961 one of the groups trading 
as A. Sind & Associates built four model homes near the 
entrance to the subdivision; one was a two-story house 
known as the Georgetowne type. Shortly thereafter, 22 
Georgetowne type houses were built on lots in the sub­
division, most of them on land to which title had been 
retained in the name of Abraham S. Sind.

Sind and his wife entered into a sales contract with 
Harmony Corporation, under which Harmony was author­



ized to act as sales agent and to offer for sale 100 homes, 
including the 48 houses being buillt by Sind and Cohen 
and their corporations in the subdivision. Pursuant to 
that contract, Harmony caused to be published in the 
Washington Post an advertisement offering* the houses 
for sale, calling the development Gteorgetowne Hill, and 
naming A. Sind & Associates as builders and developers. 
The advertisement gave the price of the Georgetowne type 
house, which was depicted in the advertisement.

In May 1961 plaintiff and his wife decided to buy a home 
in the Rockville area. Attracted by the advertisement in 
the Washington Post, plaintiff visited Harmony’s office in 
one of the model houses and was shown several lots in the 
subdivision. Among others, he was shown lot 9 in block 3, 
on which construction of a Georgetowne type house had 
just begun. It was one of the largest lots in the develop­
ment, with a stand of trees along the property line in the 
rear, giving promise of some privacy. The lot had the 
disadvantage of being the conduit for storm water drain­
age from neighboring lots.

On the same day, October 9, 1961, plaintiff agreed to 
purchase that house and lot for $25,990, made a deposit 
of $200, together with his note for $800 payable in about 
ten days, and signed a memorandum of sale which was 
also signed “ Harmony Corporation, by H. Glenn” . The 
name of the seller did not appear on this document, and 
the place where the seller would ordinarily sign “ ratify­
ing, accepting and agreeing to the above memorandum of 
sale” was never completed or signed by anyone. On 
October 10, without prior consultation with defendants, 
Harmony wrote plaintiff and his wife, returning plaintiff’s 
check and note, and stating: “ We are sorry but this deal 
cannot be consummated at this time.” The letter was sent 
and the check and note were returned to plaintiff because 
the responsible people at Harmony knew that defendants 
were unwilling to sell a lot in the development to a Negro.

Plaintiff then consulted Messrs. Rauh and Silard, Wash­
ington attorneys, who communicated with Harmony to find 
out the name of the seller. They -were told to get in touch 
with A. Sind & Associates. Rauh wrote a letter to A.



Sind & Associates, who in turn took the matter up with 
their Washington lawyer, Morris D. Schwartz. After ne­
gotiations by correspondence and conversations, a meeting 
was held in Rauh’s office on November 28, 1961, attended 
by plaintiff, defendants and a voluntary conciliator. Three 
alternatives were discussed, namely, that defendants fur­
nish plaintiff: (a) a roughly equivalent house in the Rock­
ville area outside the development; or (b) a house to be 
built on a lot in another part of the 189-acre tract; or
(c) a Georgetowne type house on one of 42 lots in the 
subdivision. Plaintiff was told that the lot covered by the 
October 9 sales contract was not available and would not 
be held, but he was not told until after July 31, 1962, that 
the lot had been sold to a third party.

Early in January 1962 after further negotiations and 
correspondence, Rauh proposed an agreement which pro­
vided for two alternatives: (a) the supplying of a sub­
stantially equivalent house in the Rockville area by Janu­
ary 30,1962, or (b) the delivery of a Georgetown type house 
on lot 9 in block 3 at any time between March 15 and August 
31, 1962. The proposed agreement also called for arbitra­
tion of any dispute over the substantial equivalence of 
such other house in the Rockville area, and for “ liquidated 
damages” in the amount of $100' a day for each day after 
August 31, 1962, that the completed house on lot 9 in block 
3 was not delivered to plaintiff, with a limit of $15,000. 
The proposed agreement was not accepted by defendants, 
and Rauh threatened to file suit in this Court, with attend­
ant publicity. Defendants were anxious to avoid such pub­
licity, because they feared that if it were known that they 
had sold or might sell a house to a Negro, it would be fatal 
to the profitable development of the subdivision and the 
rest of the tract. Defendants were very anxious to obtain 
a respite—of two years, if possible, but at least until 
August 31,1962—before word should get out that they were 
negotiating with a Negro.

Rauh finally gave defendants a deadline of noon on 
January 9, 1962, before which the agreement had to be 
accepted. He had already been in touch with Washington 
newspaper reporters, telling them of the proposed suit,



and the newspaper reporters had in turn been in touch 
with defendants. On the evening of January 8, Cohen 
visited Rauh and agreed to a modification of the proposed 
agreement under which defendants would have an addi­
tional alternative, namely, (e) to furnish plaintiff on or 
before August 31, 1962, an identical Georgetown type 
house on a lot in the subdivision equivalent to lot 9 in 
block 3. The so-called liquidated damages clause, to which 
Schwartz had objected on the ground that it was a penalty, 
was retained in the agreement which Rauh presented to 
defendants on the following morning.

That agreement, dated January 9, 1962, on which this 
action is brought, was signed by plaintiff, by Sind, by 
Cohen, and by A. Sind & Associates per Cohen. Plain­
tiff was reluctant to sign the agreement because he did 
not believe, and still does not believe, that any of the lots 
on which Georgetowne type houses have been built, or any 
other lot in the development, is equivalent to lot 9 in block
3. On the other hand, he believed that some lots could 
be made equivalent. I find (1) that some of the lots wmre 
equivalent; (2) that counsel for plaintiff drove a hard 
bargain with defendants when he found that they could 
not stand the publicity, but that the facts proven do not 
amount to duress; and (3) that the provision for liquidated 
damages was intended to be a penalty. Although both 
parties were reluctant to enter into the agreement, I do 
not find that either side acted in bad faith or intended 
not to perform.

Defendants did not offer plaintiff either (a), a substan­
tially equivalent house elsewhere in the Rockville area, 
nor (b), the house on lot 9 in block 3; so, shortly before 
July 31, 1962, Rauh suggested to Cohen that he get in 
touch with plaintiff in order that (c), a Georgetowne type 
house on an equivalent lot in the subdivision could be 
designated and the interior colors chosen. On July 31 
Cohen took plaintiff and his wife to a house, No. 28 in 
block 2, and offered them that house. Lot 28 had been 
deeded to Palro Homes, Inc., some time before, but a 
Georgetowne type house identical to the house on lot 9 
in block 3 had been built thereon by defendants or by one



40

of their corporations. Defendants were willing and able, 
in good faith, to deliver that house and lot to plaintiff if 
plaintiff had accepted it, but the lot was not equivalent or 
substantially equivalent to lot 9 in block 3. It was one 
of the smallest lots in the subdivision, there was relatively 
little space between the house on that lot and the house 
on the lot to the rear, and there were no trees or bushes 
to give any privacy.

Plaintiff refused to accept the house on lot 28 in perform­
ance of the January 9 agreement, but offered to arbitrate 
the question of the equivalence of the lot. Defendants 
and their counsel, Schwartz, who had been named their 
arbitrator in the agreement, refused to arbitrate, stating 
as their ground the presence of the penalty clause in the 
contract. Plaintiff then refused to accept as performance 
of the contract any house on any of the lots remaining un­
sold unless defendants would agree to pay him $2,000 for 
trees, bushes, etc,, which he considered necessary to make 
any remaining lot equivalent to lot 9 in block 3, and would 
also agree to pay his counsel fees. On those conditions 
plaintiff said that he would accept lot 38 in block 2, across 
the street from the lot he had originally chosen. The 
question of damages for delay was not raised at that time, 
but was raised after August 31, 1962. The parties were 
unable to reach any agreement, and after giving interviews 
to newspaper reporters, who in turn interviewed the neigh­
bors, plaintiff filed his complaint herein on October 25, 
1962, naming as defendants Sind, Cohen and A. Sind & 
Associates, described in the complaint as a corporation.

In his complaint plaintiff sought declaratory and in­
junctive relief in the nature of specific performance re­
quiring defendants to comply with the terms of the Janu­
ary 9, 1962 agreement by delivering to plaintiff the com­
pleted house on lot 9 in block 3 or an identical house on 
an equivalent lot in the subdivision, liquidated damages, 
compensatory damages, an injunction pendente lite against 
defendants’ selling 11823 Charon Lane (lot 38 in block 
2, improved by a different type house), and other relief. 
In the complaint and at the hearing on the motion for 
preliminary injunction, plaintiff did not agree that lot 38



41

in block 2 or any other lot remaining unsold was equiva­
lent to lot 9 in block 3. He did, however, file a letter from 
Rauh to Schwartz dated November 16, 1962, offering to 
purchase and take title to 11810 Smoke Tree Road (a 
Georgetowne type house) on the same conditions and at 
the same price stipulated with respect to lot 9 in block 3 
in the October 9, 1961 memorandum of sale. The letter 
also stated that, while achievement of such sale would moot 
plaintiff’s request for injunctive relief, “ it would not 
prejudice his existing right to damages for violation of 
the agreement of January 9, 1962.”

After argument, this Court entered a preliminary in­
junction on December 6, 1962, restraining defendants from 
selling or offering for sale pendente lite 11810 Smoke 
Tree Road, finding that it was the remaining lot most 
nearly equivalent to lot 9 in block 3, but stating* specifically 
that the preliminary injunction was not intended to prej­
udice any rights or points either side might rely on at the 
trial on the merits.

Counsel for plaintiff amended the complaint to include 
among the defendants in the case Abraham S. Sind and 
Israel Cohen, partners, trading as A. Sind & Associates, in 
substitution for A. Sind & Associates, a corporation. 
Counsel did not include among the defendants Judy Sind, 
wife of Abraham S. Sind, apparently because Washing­
ton counsel for plaintiffs had not taken the trouble to 
check the land records to determine in whose name title 
to the several lots in question was held. They have gen­
erally treated this case as a crusade rather than as a 
civil action involving questions of fact and law.

Although defendants had raised the point that plain­
tiff’s complaint indicated he was unwilling to accept any 
remaining lot as equivalent to lot 9 in block 3, counsel 
for plaintiff declined to amend his complaint to allege 
his willingness to do so. He has never conceded that any 
lot remaining unsold on July 31, 1962, is equivalent to 
lot 9 in block 3, but during the closing argument at the 
trial on the merits, after the evidence was in, counsel for 
plaintiff agreed to accept a conveyance of defendants’ 
interest in 11810 Smoke Tree Road in full performance of



42

the agreement of January 9, 1962, reserving only plain­
tiff’s claim for liquidated damages or compensatory dam­
ages for delay.

Discussion
I. The agreement of January 9, 1962, upon which this 

action is brought, was not induced by duress on the part 
of plaintiff or his counsel; it was executed in good faith, 
albeit reluctantly, by both sides. It is a valid contract.

A contract entirely valid at law, however, will not neces­
sarily be enforced specifically by a court of equity. Brooks 
v. Towson Realty, Inc., 223 Md. 61. For specific perform­
ance to be granted, the contract must be definite and cer­
tain in all its terms and free from all ambiguity. Trotter 
v. Lewis, 185 Md. 528, 532. See also Standard American 
Home,s, Inc. v. Pasadena Building Company, 218 Md. 619; 
Peoples Drug Stores, Inc. v. Fenton Realty Corporation, 
191 Md. 489; Baker v. Dawson, 216 Md. 478, 488-491; New- 
land v. Millicent, 188 Md. 604.

In Trotter v. Lewis, supra, the Court said, at p. 535: 
“ But specific performance may be decreed if the terms of 
the contract are so expressed that the Court can determine 
with reasonable certainty what are the duties of the par­
ties and the conditions under which performance is due. 
The American Law Institute states: ‘The usual aids to 
interpretation will be availed of by the Court, just as in 
the case of enforcement by other remedies. Expressions 
that at first appear incomplete or uncertain are often 
readily made clear and plain by the aid of common usage 
and reasonable implications of fact. Apparent difficulties 
of enforcement due to uncertainty of expression may dis­
appear in the light of courageous common sense.’ 2 Re­
statement, Contracts, Sec. 370.”

The agreement of January 9, 1962, was not so indefinite 
or uncertain that it cannot be specifically enforced. This 
Court has readily concluded: (1) that lot 28 in block 2 is 
not equivalent to lot 9 in block 3, principally because of 
its small size and lack of trees or other screening; and 
(2) that a number of other lots, including 11810 Smoke 
Tree Road and the lots adjoining lot 9 in block 3, are 
equivalent.



43

II. “ [F]or specific performance to be granted, the con­
tract must not only have been full, fair and honest in the 
beginning but such that ‘the performance of it may be 
fairly and conscientiously required’.” Brooks v. Towson 
Realty, Inc., 223 Md. 61, 73.

The agreement of January 9, 1962, meets that test. De­
fendants were desperately anxious to buy time, and plain­
tiff was willing to give them time, provided defendants 
would comply with any one of the three alternatives al­
lowed them by the agreement. Having received the bene­
fit of the agreement and having failed to perform two 
of the alternatives, (a) and (b), defendants cannot justly 
complain if the Court requires them to perform the third 
alternative, (c).

No. 11810 Smoke Tree Eoad is the only remaining lot in 
the development improved by a Georgetowne type house. 
Plaintiff has now agreed to accept that house and lot in 
performance of defendants’ obligation under the January 
9 agreement, without abatement for an alleged lack of 
equivalence in the lot. Defendants do not suggest that the 
lot is more valuable than lot 9 in block 3. The Court has 
found the lots to be equivalent. If plaintiff had been able 
to purchase another suitable house in the Rockville area, 
the Court would have denied specific performance and al­
lowed damages for any difference between the cost of such 
other house and $25,990, the price fixed in the memorandum 
of sale of October 9, 1961, and in the agreement of Janu­
ary 9, 1962. But the equities of this case, together with the 
extreme difficulty, amounting to virtual impossibility of 
plaintiff’s purchasing a suitable home in the Rockville area 
except by subterfuge, call for specific performance despite 
plaintiff’s delay in agreeing to accept 11810 Smoke Tree 
Road, or any other house except the house on lot 9 in block 
3, in performance of defendants’ obligation under the Janu­
ary 9 agreement. Such delay may, however, affect plain­
tiff’s right to recover the damages which he claims.

III. The failure of plaintiff to join Judy Sind as a party 
defendant prevents the Court from granting any relief 
against her. Even if she is a member of some partnership 
or joint venture which trades under the name A. Sind &



Associates, she is not a member of the partnership which 
was made a defendant by counsel for plaintiff at the begin­
ning of the trial. The defendant partnership was specif­
ically stated to be Abraham S. Sind and Israel Cohen, 
trading as A. Sind & Associates.

The evidence in this case indicates that legal title to 
11810 Smoke Tree Road is held by Abraham S. Sind in 
trust for himself and his associates. That finding, however, 
is not binding on Judy Sin to destroy any dower right she 
may have, or to require her to join in any deed which the 
Court may require defendants to execute. Nevertheless, 
under established law, plaintiff may have a decree for 
specific performance against defendants, requiring them to 
convey any rights they may have in 11810 Smoke Tree Road, 
provided plaintiff is willing to pay the full contract price 
to defendants for their interest therein, without deduction 
for Judy Sind’s possible dower interest. Schneider v. 
Davis, 194 Md. 316; Trotter v. Lewis, 185 Md. 528.

The Court will enter a decree requiring defendants to 
convey to plaintiff all their right, title and interest in and 
to 11810 Smoke Tree Road upon plaintiff’s tendering to 
defendants within ninety (90) days from the date of the 
decree, the full balance of the purchase price called for by 
the memorandum of sale and by the January 9 agreement, 
without interest. That balance is $24,990.

The Court doubts whether plaintiff will be as well off 
under such a decree as he would have been if he had re­
nounced the remedy of specific performance and sought to 
prove damages measured by the difference between $25,990, 
the price fixed in the January 9 agreement, and the amount 
it would cost, plaintiff to buy an equivalent house and lot 
in the Rockville area. Plaintiff may have to finance his pur­
chase of 11810 Smoke Tree Road without having full title 
to the property. Nevertheless, after this problem was 
brought to the attention of plaintiff and his counsel, and 
they had had an opportunity for mature consideration, 
both plaintiff and his counsel elected to seek specific per­
formance and damages for delay.

IV. Plaintiff is not entitled to liquidated damages. The 
Court has found as a fact that the provision for liquidated



damages in the January 9, 1962, agreement was intended 
to be and was a penalty; it is, therefore, not enforceable.

Defendants’ refusal, from July 31 until long after August 
31, 1962, to convey to plaintiff any property in the sub­
division except lot 28 in block 2 and the Georgetowne type 
house built thereon, was a breach of the agreement of 
January 9, because lot 28 in block 2 was not equivalent to 
lot 9 in block 3. Defendants’ refusal to arbitrate the 
equivalence of the lot confirmed the breach.

Plaintiff’s refusal thereafter to accept any of the remain­
ing lots upon which a Georgetowne type house had been 
built, without an allowance of some $2,000 for planting, 
etc., was not justified, since some of the lots were equivalent 
to lot 9 in block 3. If no remaining lot were equivalent, 
plaintiff would not be entitled to specific performance, but 
only to damages for defendants’ breach.

As we have seen, plaintiff did not agree until November 
16, 1962, to accept 11810 Smoke Tree Road without reduc­
tion in the price for any alleged lack of equivalence; even 
then, he coupled his acquiescence with an assertion of his 
right to damages “ for violation of the agreement of Janu­
ary 9, 1962.” Presumably this vague phrase meant liqui­
dated damages or compensatory damages for delay.

Plaintiff’s evidence of damages consists principally of 
additional mileage driven once or twice a school day by 
plaintiff and perhaps by his wife and some payments made 
to a friend who cared for their teen age daughter after 
school. All factors considered, the Court finds that this 
amounted to about $50 a week for the 30 weeks from No­
vember 16, 1962, to the end of the school year in June 
1963. Therefore, the Court awards plaintiff damages of 
$1,500 for delays caused by defendants’ breach not offset 
by plaintiff’s delay in agreeing to accept an identical house 
on an equivalent lot.

Counsel will settle a decree within 10 days.
/ s /  R oszel C. T h o m se n ,

Chief Judge, U.S. District Court.



46

I n  t h e  U n it e d  S tates D ist r ic t  C ourt fo r  t h e  D istr ic t
of M aryland

Civil Action No. 14155

R oland E. B a rn es , Plaintiff, 
vs.

A. S in d  & A ssociates, et  al., Defendants

D ecree

The above cause coming on for hearing on the pleadings 
and evidence, the parties by their counsel having been 
heard and having submitted memoranda, and the Court 
having filed its written opinion herein on November 12, 
1963, it is, by the United States District Court for the 
District of Maryland, this 30th day of April, 1964,

A d ju d g ed , Ordered and D e c r e e d :

1. That the opinion of this Court of November 12, 1963, 
is hereby adopted as the Court’s findings of fact and 
conclusions of law.

2. That upon tender by the Plaintiff to the Defendants, 
within ninety days from the date hereof, subject to the 
provisions of Paragraph 6 hereof, of' the sum of $24,990.00, 
Defendants shall convey to Plaintiff all of the Defendants’ 
right, title and interest in and to the property 11810 Smoke- 
tree Road, upon the following terms and conditions:

(a) free of encumbrance, title to be good of record, sub­
ject, however, to covenants, conditions and restrictions of 
record, and subject also to the possible dower interest of 
Judy Sind, wife of Abraham Sind, otherwise the deposit 
of $1,000.00 is to be returned and sale declared off at the 
option of the Plaintiff, unless the defects are of such char­
acter that they may readily be remedied by legal action, 
but the Defendants are hereby expressly released from all 
liability for damages by reason of any defect in the title. 
In case legal steps are necessary to perfect the title, ex-



47

pressly excluding any legal action with respect to the pos­
sible dower interest of Judy Sind, such action must be 
taken promptly by and at the Defendants’ expense where­
upon the time herein specified for full settlement by the 
Plaintiff will thereby be extended for the period necessary 
for such action.

(b) Defendants to execute and deliver a deed to the 
Plaintiff of all of the Defendants’ right, title and interest 
in and to said property, without any warranties, and to 
pay for Federal Revenue Stamps on the deed.

(c) Defendants to give possession of said property upon 
payment of the sum of $24,990.00 as specified in Paragraph 
2 hereof and subject to the provisions of Paragraph 6 
hereof. If Defendants shall fail to do so and occupy said 
property, Defendants shall become and be thereafter 
tenants at sufferance of the Plaintiff, and hereby expressly 
waive all notice to quit provided by law.

(d) Defendants assume the risk of loss or damage to 
said property by fire or other casualty until the executed 
deed of conveyance is delivered to the Plaintiff or is 
recorded for him.

(e) all notices of violations of County or State orders 
or requirements noted or issued by Montgomery County 
or the State of Maryland or prosecutions in any of the 
courts of the State of Maryland, or elsewhere, on account 
thereof against or affecting the property at the date of 
conveyance shall be complied with by the Defendants and 
the property conveyed free thereof, with the exception of 
the means of egress regulations. This provision shall sur­
vive the delivery or recording of the deed as specified 
above.

(f) settlement is to be made at the office of the title 
company searching the title for the Plaintiff, and deposit 
with the title company of the cash payment as aforesaid, 
the deed of conveyance and such other papers as are re­
quired by the terms of this order shall be deemed and 
construed as a good and sufficient tender of performance 
of the terms hereof, subject, however, to the provisions 
of Paragraphs 2 and 6 hereof.



48

(g) taxes, general and special, are to be adjusted ac­
cording to the certificate of taxes as issued by the proper 
authority from Montgomery County, Maryland, except that 
assessments for improvements completed prior to the date 
of this decree, whether assessment therefor had been levied 
or not, shall be paid by the Defendants or allowance made 
therefor at the time of transfer.

(h) examination of title, tax certificate, conveyancing, 
notary fees, county and state transfer and revenue stamps 
and all recording charges, including those for purchase 
money trust, if any, are to be at the cost of the Plaintiff; 
provided, however, that if upon examination the title 
should be defective, excluding any defect which may arise 
by reason of the possible dower inters! of Judy Sind, wife 
of Abraham Sind, and is not remedied as aforesaid, the 
Defendants hereby agree to pay the cost of the examination 
of title.

(i) furniture and furnishings, if any, contained in said 
property are not to be included in the conveyance of said 
property from the Defendants to the Plaintiff;

(j) the costs incident to the installation of house con­
nection to sewers, curb and gutter, sidewalks and streets 
shall be borne by the Defendants if required to be installed 
prior to the time of conveyance hereunder by the appro­
priate governmental authorities, but this shall not be con­
strued to relieve the Plaintiff of his liability to assume and 
pay the annual benefit charges of the Washington Sub­
urban Sanitary Commission as set out in Item (k) hereof.

(k) if the property is serviced by the Washington Sub­
urban Sanitary Commission, annual benefit charges of said 
Commission are to be adjusted to date of conveyance and 
assumed thereafter by Plaintiff.

(l) at or before the property 11810 Smoketree Road is 
conveyed by the Defendants to the Plaintiff as hereinabove 
provided, the Defendants shall furnish and install, at their 
own cost and expense, in said property a drier, washer, an 
air conditioning unit, a hatch cover on the carport and 
shall make a monetary allowance to the Plaintiff of $100.00 
in lieu of painting.



49

3. That in the event the Plaintiff fails to tender to the 
Defendants the sum of $24,990.00 within ninety days from 
the date hereof, subject to the provisions of Paragraph 6 
hereof, the obligation of the Defendants imposed by Para­
graph 2 of this Decree to convey to the Plaintiff all of the 
Defendants’ right, title and interest in and to the property 
11810 Smoketree Road shall be immediately and finally 
rescinded and the Defendants shall be at complete liberty 
to make such other conveyance and disposition of said 
property as they may see fit, free and clear of any claim 
thereto on the part of the Plaintiff, and the Defendants 
shall return to the Plaintiff, without interest, the sum of 
$1,000.00 heretofore paid by the Plaintiff to the Defendants.

4. That the Plaintiff recover of the Defendants the sum 
of $1,500.00 as damages.

5. That the Defendants pay the costs of this proceeding.
6. In the event of an appeal from, this decree the opera­

tion thereof shall be stayed upon the filing by the appellant 
or appellants of an appeal bond in amount or penalty of 
$1,000.00. If an appeal is taken and if this decree is 
affirmed the period of ninety days specified in Paragraphs 
2 and 3 hereof shall account from the date upon which 
the order affirming the decree becomes final.

R o sz e l  C.

Approved as to form only:

T h o m s e n , 
Chief Judge.

J o h n  S il a r d ,
of counsel for the Plaintiff.

E dw ard  P ie r s o n ,
of counsel for the Defendants.

(2519-7)