99 A. 954 | Md. | 1917
The decree from which this appeal is taken provides for the specific performance by the appellants, Marie Jaeger and Carl Jaeger, her husband, of their agreement to sell to the appellee a half interest in a farm owned by Mrs. Jaeger in Prince George's County. The agreement is in writing and is dated June 5, 1914, the title to the farm having been conveyed the same day to Mrs. Jaeger at the instance of her husband who had purchased the property from the Washington Loan and Trust Company. It was stipulated in the agreement that for the half interest sold to the appellee, he should pay one-half of the price at which it had just been acquired by the vendors. At the foot of the agreement, and bearing the same date, is a receipt, signed by the appellants, acknowledging the payment by the appellee of one hundred and fifty dollars on account of the purchase price for a half interest in the property. It appears without dispute in the testimony that the farm was conveyed to Mrs. Jaeger for a consideration of $5,000, of which $2,000 was paid in cash, and the balance was secured by a deed of trust providing for its payment in three years with interest, at the yearly rate of five per cent., payable semi-annually. The testimony is also in full accord to the effect that the purchase price, amounting to $2,500, for the half interest bought by the *3 appellee, was to be paid in cash to the extent of $1,000, including the advance payment of $150 mentioned in the receipt we have referred to, and that the payment of the remaining $1,500 was to be represented by the appellee's assumption of one-half of the indebtedness of $3,000 secured by the existing deed of trust. No time was stated in the agreement for the payment of the cash balance of purchase money, the assumption of a proportionate liability under the deed of trust, and the conveyance to the appellee of a half interest in the title. This omission in the agreement was partly covered by the appellants' acceptance of the appellee's promissory note, maturing in three months, for the deferred cash payment of $850. About three weeks after the note became due the appellee notified the appellants that he was ready to make settlement, and left with them the draft of a deed to be executed by them conveying to his wife, by whom the funds were furnished, the interest he had purchased in the farm, and providing for the vendee's equal assumption of the debt secured by the deed of trust, and requested them to meet him the next day at his solicitor's office to complete the transaction. The appellants failed to appear at the place and time appointed, and have ever since refused to make the desired conveyance.
The main objection urged in the pleadings against the specific performance of the agreement is that the plaintiff did not offer to comply with the terms of the sale at or before the maturity of the promissory note given for the deferred payment of purchase money. This is not an adequate ground of defense under the circumstances shown by the proof. Time was manifestly not of the essence of the contract. There is nothing in the terms of the agreement, or in the evidence before us, to show that settlement at the maturity of the note, or before that time, was designed to be an absolute condition of the consummation of the purchase. The rule is definitely settled that time of payment is not of the essence of such an agreement, unless it is so made by express stipulation, or *4
unless the intention that it shall be so regarded is apparent from the circumstances of the transaction, the conduct of the parties, or the special purpose for which the sale was contracted. Acme Building Co. v. Mitchell,
Another contention is that the contract of sale is void for want of mutuality because it was not signed by the vendee. The same condition existed in Engler v. Garrett,
It is further contended that the suit is not maintainable because the plaintiff acted as agent of the Washington Loan and Trust Company in effecting the sale of the property in question to the defendants, and was paid a commission by the Company for that service, although at the time he was thus representing the vendor, he had an understanding with the defendants, as vendees, that he was to have an equal interest in the purchase and was to apply his commissions upon the price contracted to be paid. The conduct of the plaintiff, in thus assuming to represent conflicting interests in the transaction *6
which resulted in the acquisition of the property by the defendants, is said to have the effect of vitiating the agreement sought to be enforced in this suit. The real estate officer of the Washington Loan and Trust Company testified that the commissions were paid to the plaintiff as a broker who produced a purchaser of the property at a price which the company was willing to accept, and the witness could not say that the commissions would not have been paid if the plaintiff's interest in the purchase had been disclosed, as such payments had sometimes been made in the case of sales to brokers. But even if the action of the plaintiff in reference to those negotiations may be regarded as a breach of his duty to the vendor in that sale, for which the latter might have had suitable redress, yet it is not available to the defendants as a ground for refusing to perform their independent agreement with the plaintiff to sell him an interest in property acquired under a purchase which has been fully consummated. State v. B. O.R.R. Co.,
The decree passed by the Court below provided for the assumption by the plaintiff of one-half of the indebtedness of $3,000 secured by the deed of trust, which the defendants had satisfied after the filing of the bill of complaint, and for the payment by the plaintiff to the defendants of the sum of $850 as the cash balance due under the contract of sale, with interest thereon from the date of that agreement to September 21st, 1914, at which time the plaintiff's offer to make the payment and settlement was virtually rejected by the defendants' failure to meet him for that purpose. It is claimed that interest should have been allowed for a longer period because the fund intended to be applied to the payment was not kept available for that object but was afterwards devoted to other uses. In Brewer v.Sowers,
It was argued also that the plaintiff's proffer to make settlement for the purchase was not sufficient because the deed tendered by him to the defendants for execution named his wife, instead of himself, as the grantee. This was not a ground on which the defendants refused to perform the agreement, nor does their formal answer rely upon it as defense, and we do not think the objection is now available, even if, under the circumstances, it could have been properly raised in the first instance.
The point was made that the purchase price to be paid by the plaintiff was never tendered. In a proceeding of this kind it is not necessary to allege and prove a technical tender, but the averment in the bill of complaint of the purchaser's readiness and ability to comply with the contract of sale is sufficient.Chicora Fertilizer Co. v. Dunan,
After the defendants agreed to sell a half interest in the farm to the plaintiff, a portion of the tract was sold to another person, and the decree correctly admits the plaintiff to the equal benefit of that contract.
As we are unable to sustain any of the objections and defenses which have been interposed, the decree for specific performance will be affirmed.
Decree affirmed, with costs. *8