51 Md. 277 | Md. | 1879
delivered the opinion of the Court.
There is a good deal of obscurity in the wording of the contract of the 14th of September, 1864, upon the point, whether the $4000 purchase money for the particular lot and improvements known as the “ Tan Yard Property/’ in case Lefferman exercised his option to buy it, was to be paid in gold or in currency, and there was certainly very reasonable ground for the contention on his part, that he' could pay that sum for it in currency. This obscurity in the terms of the contract, was noticed in the opinion delivered when the case was before this Court on the former appeal. 45 Md., 119. The decision, however, was that taking the whole agreement together, the $4000 were payable in gold, or its equivalent in currency. But the Court further decided, that though such was the legal effect of the agreement, yet in view of this obscurity, and the reasonable doubt as to its true construction, it was clearly the duty of Mrs. Renshaw to have objected to the payment in currency when it was tendered by Lefferman; that he was under no obligation to purchase the property, but on the contrary, it was entirely optional with him to take it or not, and when she accepted payment in currency, and executed and delivered a deed for the property, the presumption was, in absence of proof to the contrary, that she waived a compliance with the terms of the agreement as she understood them. The Court then adds, “there is-not a particle of proof to show mistake, surprise or fraud, nor is there any evidence which would lead us to infer, that Lefferman would have taken the property if payment in gold had been demanded. . One thing is clear, if such demand had been made, or if Mrs. Renshaw had
The new trial has been prosecuted upon the sole ground of mistake. There is no charge or pretence of fraud or surprise. The amended declaration avers, that the deed was by the mistake of Tier husband, who acted as the plaintiff’s agent in the premises, (she being in Paris at the time,) inadvertently delivered to the defendant upon his paying the §4000 in currency, instead of gold or its equivalent as stipulated by the agreement, that this mistake was discovered by her husband shortly after the delivery of the deed, and immediately upon its discovery he notified the defendant thereof, and demanded that he should pay the balance of the unpaid purchase money, to wit: the sum of §400 in currency, but the defendant refused to pay the same. The testimony of Renshaw, the husband, on this subject is, that when the deed was prepared and given to him, he sent it to Paris to be executed by his wife, and on its return he went to the office of Mr. Israel, executed it and received §4000 in currency, that in a few days thereafter he discovered, upon looking at the contract of the 14th of September, 1864, that it called for the payment in gold, and he then called on the defendant for the premium of tender cent., which was refused.
This is all the evidence as to mistake which the record contains, and we presume it is all that can be adduced. At most, it amounts merely to a mistake on the part of the plaintiff’s agent in delivering the deed, without demanding or receiving the §4000 purchase money in gold or its equivalent. But, that is not the mistake which this Court in its former opinion intimated, might furnish the plaintiff a ground of action. What was meant by that opinion was a mutual mistake of both parties. There is
Again it must be remembered, that in this action the plaintiff seeks to recover the difference between the value of gold and currency, as' part of the purchase money due under the agreement referred to. It has already heen decided on the former appeal, that the defendant was not bound by this agreement to purchase, and that it was entirely optional with him to take the property or not. There was nothing in the record in the former case, nor is there anything in the present record to show, that he would have taken the property if gold had heen demanded. Such being the previous decision of this Court, and such being his right under the contract, we think it was incumbent on the plaintiff in order to sustain the action, to have tendered back the equivalent of what she had received, so that the defendant could have been placed in a position to exercise the option, to return the property, or hold on to it and pay the difference demanded.
Entertaining these views of the case, we find no error in the several rulings excepted to, and the judgment must he affirmed.
Judgment affirmed.