82 Md. 35 | Md. | 1895
delivered the opinion of the Court.
Miss deRonceray, the appellee, brought suit in the Circuit Court for Montgomery County against Henry N. Copp, appellant, and recovered a judgment for $800.31, with interest from March 22, 1895. The suit was instituted upon a written contract under seal, for the conditional sale of certain' lots in “West End Park,” near Rockville, in Montgomery County. There is but a single question raised by the pleadings in the cause, and it arises upon the following clause of the contract: “ It is further agreed by said Henry N. Copp to refund the purchase money paid prior to June 1st, 1894,
The only plea interposed on the part of the defendant, is that the demand for the return of the money was not made at the time specified in the contract. It is conceded that the appellee complied with the terms of the contract in the payment of all the monthly instalments from the date 01 the contract, and including the instalment for the month of May, 1894. And certain letters from the appellee to the appellant, dated the first and fifth day of June, 1894, respectively, and a reply thereto, dated the 7th day of June, 1894, from the appellant, are in proof, as evidence of demand under the contract. The Court below sitting as a jury ruled as a matter of law, that the letter dated June 1st, 1894, and the letters dated June 5th and June 7th, 1894, were a sufficient compliance as to notice with the requirements of the contract to entitle the plaintiff to have the money refunded to her, and that the plaintiff was entitled to recover. The contention of the appellant here is, that the Court erred in granting the plaintiffs prayers, because a demand made on June 1st, 1894, was not a compliance with the
The prayers, however, it seems to us, are free from objection and contain the law of the case. It is well-settled, as a general rule, that in the sale and purchase of real estate the fixing a particular day for the completion of the contract is not regarded as of the essence of the contract. The parties may make it so, in express terms, or it may be implied, having in view the nature and character of the property and the object with which it is bought. “ It is, after all,” says this Court in Gilman, &c., Trustees, v. Smith, 71 Md. 174, “a question of intention.” But under the facts of the case now under consideration, even assuming that time was of the essence of the contract, we are clearly of the opinion that this condition of the contract was complied with. The letter of June first, written by the appellee, made a formal demand for the return of the purchase money in accordance with the terms of the contract, and was amply sufficient. This was followed, however, by a letter of June 5th, of the same year, in these words, “ In accordance with our agreement on March 6th, 1890, I, on Friday last, June 1st, delivered to one of your clerks, Miss Gilbert, for you a formal notification of my withdrawal from said agreement. Will you have the kindness to inform me if you have received this.” And upon this letter the appellant wrote, on June 7th, “ I beg leave to reply, that your notice of June 1st was received on the day specified. Shortly after the 15th instant, I will formally reply, when I know the number who intend to apply for refund.” The letter of the 5th of June, 1894, makes the demand of June first a part of that letter, and was equivalent to a demand in writing as of the fifth Of 'June, 1894, and a compliance in respect to time, with the condition of the contract. But apart from this, the letter of the 7th of June, which acknowledged the receipt of the letters of June 1st, and of the 5 th of June, 1894, was clearly the recognition of a demand in the pos
Being then of the opinion that the demand under the facts of this case for the payment of the money was sufficient under the contract to entitle the plaintiff to recover, the judgment will be affirmed.
Judgment affirmed with costs.
