37 A.2d 843 | Md. | 1944
In a suit for specific performance and accounting, George Carl Soehnlein and wife, complainants, allege (1) that Everett E. Pumphrey, defendant, orally agreed on April 13, 1937, to sell them certain real estate in Prince George's County for $2,750, to be paid in instalments of $30 per month; (2) that in reliance thereon they took possession of the property and made substantial improvements, having painted the house twice, extended the excavation thereunder, weatherstripped and screened the house, fenced the property, erected a garage and chicken houses, constructed a driveway, and planted shrubs and fruit trees; (3) that they have paid a total of $2,017, out of which defendant has paid taxes and *336 insurance premiums, but shortly after the agreement was made they informed him that they were unable to continue the payments, whereupon he replied that "they could ride the waves and he would ride with them," which was understood as a waiver of periodic payments as long as they would pay as much as they could from time to time; (4) that in May, 1943, they informed him that they wished to pay all arrears, and then for the first time he declared that they were not buying the property but merely renting it, and offered to sell it to them at a higher price without any allowance for the payments they had made; and (5) that while they do not know how much he has paid for taxes and insurance, they offer to pay into court whatever balance is due on the purchase price. The Chancellor sustained defendant's demurrer and dismissed the bill of complaint. Complainants are appealing from that decree.
It is an established rule that an oral promise to convey real estate will be specifically enforced, notwithstanding the Statute of Frauds, where there has been a part performance by the donee in reliance on the contract, whereby he will be defrauded unless the promise is performed. Moale v. Buchanan, 11 Gill. J. 314, 324; Hohman v. Hohman,
Defendant argued that complainants are not entitled to relief in equity because they stopped paying monthly instalments, and his alleged waiver of periodic payments was indefinite and lacked consideration. The rule has been adopted in this State that when time is expressly declared to be of the essence of a contract of sale, a court of equity will ordinarily not grant specific performance where the purchaser has failed to make payment within the time specified by the contract. Budacz v. Fradkin,
Since time is not of the essence of this contract, the failure of the purchasers to make payments promtly does not of itself deprive them of their right to demand specific performance when they are able to perform their part of the contract, because the court can effectuate the general object of the parties by compelling performance of the contract and ordering the vendees to compensate the vendor for the delay. Ordinarily interest is adequate compensation for loss caused by another's failure to pay money when due. Wilson v. Herbert,
It is true that a suit for specific performance is addressed to the sound discretion of the court, and a decree for such relief is not a matter of right ex debito justitiae. However, the discretion is not arbitrary, but is controlled by established principles of equity. Where a contract for the sale of real estate is clearly established, and it would be unjust for the vendor to refuse to deliver a deed for the property, it is as much the duty of the court of equity to decree specific performance as it would be for a court of law to give damages for breach of the contract. Popplein v. Foley,
We find it necessary, therefore, to reverse the decree of the Chancellor sustaining the demurrer and dismissing the bill of complaint.
Decree reversed, and case remanded for further proceedings,with costs.