43 Md. 440 | Md. | 1876
delivered the opinion of the Court.
The questions raised in this case depend on the true construction of the contract between the parties of the 5th of June, 1873. By that contract the appellees agreed to furnish to the appellant, or to his order, lumber to the amount of about two thousand dollars, and to take in payment therefor “the four rents on Stockton alley, as leased to A. J. King, amounting to $105 per annum, at 7 per cent., making fifteen hundred dollars ; balance in cash.” At the time of this contract there was no lease to King, but two days thereafter there was a sub-lease executed by the appellant to King, of the particular parcels of ground referred to on Stockton alley, upon which rents were reserved, amounting in the aggregate to $105 per annum. This sub-lease was not recorded until the 27th of June, 1873.
The Court below instructed the jury, that the rents contemplated by the agreement were rents of a permanent nature, and such as are usually capitalized at a given per cent.; and that, by the deeds offered in evidence, showing the nature of the appellant’s title to the lots of ground, and the rents mentioned, in the suh-lease from the appellant to King, the tender of an assignment of such rents was not a compliance with the terms of the agreement of the 5th of June, 1873. And in this construction of the contract we entirely agree.
If the sub-lease had been executed and brought to the knowledge of the appellees at tbe time the contract of the 5th of June, 1873, was entered into, then, possibly, the construction of the contract should be different. For, in the construction of contracts, the Court must not only look to the language employed, but to the subject-matter, and the surrounding circumstances, in order to arrive at the intention of the parties. The Court should seek to place itself as nearly as possible in the position of the parties, so as to view the circumstances as they viewed them, and thus be enabled to judge of the meaning of the words used,
This case is fully embraced by the well established doctrine, “ that the vendor must be prepared and able to convey to the purchaser an estate or interest substantially corresponding with that bargained for and agreed to be sold, as well in regard to the tenure, and the situation,
It is contended, however, for the appellant, that because the appellees received $300 on account of the lumber, on the 10th of October, 1873, and endorsed a receipt therefor on tlie contract of the 5th of June, 1873, as being on account of the cash part of the agreement, they therefore must be considered as having waived all objection to the acceptance of the rents, as at that time the sub-lease to King was of record. But the answer to this argument, is, that there is no evidence whatever that the appellees had knowledge in fact of the existence or contents of the sub-lease; and it would be rather difficult to hold that parties had waived an objection, of which they were not aware. 1 Sug. V. & P., 9, 10, and 344; Flight vs. Booth, 1 Bing., N. C., 370, 379; Fordyce vs. Ford, 4 Bro. C. C., 494. Mere constructive notice would not be sufficient upon which to found a presumption of waiver, in such case.
In the argument, a point was made as to the right of the appellees to maintain the action in its present form. But we think the objection is without foundation. The appellees having refused the tender of the sub-rents, and by bringing their action for the recovery of the balance due on account of the lumber furnished, elected to rescind the contract, as it was their right to do, there is no difficulty in the way of their maintaining this action. They recover the price of the lumber, as the consideration paid under the contract which has been rescinded ; the law implying an undertaking to pay for the lumber upon the recission of the contract for the purchase of the rents. Farrer vs. Nightingale, 2 Esp. Cas., 639; Flight vs. Booth, 1 Bing., N. C., 370; Blake vs. Phinn, 3 C. B., 976; Gillett vs. Maynard, 5 John., 85; Jenkins vs. Long & Byrne, 8 Md., 132.
Finding no error in the rulings of the Court below, we affirm its judgment.
Judgment affirmed.