Budacz v. Fradkin

Digges, J., delivered the opinion of the Court. This appeal is taken from a decree of the Circuit Court No. 2 of Baltimore City, decreeing specific performance of a written agreement for the sale of certain lots or parcels of ground located in Baltimore City. The agreement is as follows : “This agreement, made this tenth day of July, 1923, between Mr. Melchior Budacz and wife, Marie Budacz, of the first parties, J. Albert Fradkin, of the second part. “"Witnesseth, that the said parties of the first part do hereby bargain and sell unto the said parties of the second part, and the latter doth hereby purchase from the former the following described property, situate and lying in Baltimore, Md., viz., described as 2002, 2007, 2009, 2011, 2013 Lincoln court, and 125 Jones ⁴⁰² court, at and for tbe price of thirty-six hundred dollars ($3,600), of wbicb two hundred dollars ($200) have been paid prior to the signing hereof, and the balance to be paid as follows: Ground rent, $10 each and balance within sixty days from date of July 10th, 1923, to September 10th, 1923. And upon payment as aboye of the unpaid purchase money, a deed for the property shall be executed at the vendee’s expense by the vendor, which shall convey the property by a good and merchantable title to the vendee. “Taxes, water rent, ground rent to be adjusted at the time of settlement to be paid or allowed for by the vendor to day of settlement, 1923. “As to possession of the premises, it is agreed that possession upon final settlement in full, and the said parties hereto hereby bind themselves, their heirs, executors and administrators for the faithful performance of this agreement within sixty days from date hereof, said time to be the essence of this agreement. “Witness our hands and seals. “Melchoir Budacz.

(Seal) “Marie Budacz. (Seal) “J. Albert Fradkin. (Seal)” It appears from the evidence that the .appellants, Melohior Budacz and Marie Budacz, were the owners of the six leasehold lots of ground described in the agreement, in Baltimore Oity, Md., each of said lots being subject to a ground rent of $10; that a certain I. Albert Fradkin, as agent for Nathan Fradkin, purchased the said lots as set out in the agreement for the sum of $3,600, $200 of the purchase price being paid at the time of the signing of the contract, and the balance according to its provisions to be paid within sixty days from that date; that on the day that the contract was entered into, or very shortly thereafter, I. Albert Fradkin transferred to his unde, Nathan Fradldn, his right, title, and interest under the contract by endorsing on the back thereof the following: “I hereby transfer, for good and valuable consideration, this contract and all right hereunder to Nathan ⁴⁰³ Fradkin. I. Albert Fradkin” — and delivering the contract to Nathan Fradkin, the consideration for this assignment being a commission of four per cent., or $144, paid I. Albert Fradkin by Nathan Fradkin; that within a day or two from the date of the contract Nathan Fradkin .applied to Israel D'.

Steinbach, president of the Industrial Savings and Loan Association, for a loan on the property described in the contract, in the amount of $2,500 ; that he Was. told by Steinbach to return in a few days .and hei would be informed as to whether or not the loan could be made; that Nathan Fradkin did return at the time suggested and was told that he would be made the loan, and was directed to Daniel Ellison, the attorney of the building association, that the title to the property might be examined and mortgage prepared; that the same day he went to the appellants’ residence to get a reference to the title to furnish his attorney, he received information from Newell & Company that the property described in his contract was advertised for sale by some one else; that he communicated this information to his attorney and was told by Mr. Ellison that it was. useless to search the title, because he might nor got the property, and that he, the attorney, would get in touch with Mr. Budaez’s attorney; that- the property was .actually sold under the advertisement, of which he had learned, and was purchased by some one for the sum of $4,600, the record failing to disclose the name of the purchaser. That subsequently, on July 24th, 1923, Mr. Ellison, attorney for appellee, wrote the appellants the following letter: “July 24, 1923. “Mr. Melchior Budacz, Mrs. Marie Budacz, 1744 Eastern Avenue, Baltimore, Md. “Dear Sir and Madam: “Kindly call and see me at your earliest convenience relative to the sale of the property on Lincoln court, etc., to J. L. Fradkin. ⁴⁰⁴ “I would prefer to get in-touch with your counsel, if you will advise me who be is. “Yours very truly.” That about the same time the attorney for the appellee got in communication with Mr. Richardson, attorney for the appellants, and informed him of the difficulty -as to the title, and made the proposition to settle for the property provided the money was left in some hank or in the hands of Mr. Richardson until it should be determined whether the alleged defect in the title- caused by a prior contract of sale could be disposed o-f, with the understanding that if and when this was accomplished the money should be turned over to the appellants, or if this could not be done, that the appellee would re-convey the property to his client; that this proposition was flatly refused by the appellants^ attorney, he stating, that his client .wanted the money in cash. The prior contract, which created the alleged cloud on the title, was as follows-: “May 18th, 1923. “Received of Paul Stein, fifty dollars ($50.00) as deposit on properties Nos. 2002-2007-09-11-13 Lincoln Court and No. 125 Jones Court, subject to an annual ground rent of $10.00 each at and for price thirty-three hundred ($3,300.00) for all settlement to be made within thirty days from above date. “Mary Budacz. (Seal) “Melchior Budacz.

(Seal) “Per A. Budacz.” That the rights and interest of the vendee under this contract were shortly after its date transferred, first by the vendee therein named to a Mr. Rodey, and by him conveyed to Samuel Frahm, by whose authority the property was advertised and sold by Newell & Company, this sale taking place on July 23rd, 1923; that the- appellee learned of this prior contract and endeavored to locate Samuel Frahm and make some arrangement with him which would remove any obstacle to the consummation of the contract in this case, by reason of the said prior contract. He was unable to con ⁴⁰⁵ summate this arrangement before September 10th, 1923, the date of the expiration of the time specified in his contract with Budacz, and on that date his attorney again wrote to the appellants demanding that they return deposit of two hundred dollars paid on account of the purchase price, because of their failure to deliver a good title to the appellee. This letter was replied to' by the attorney for the appellants on September 13th, in whieh reply he stated: “Your favor of September 10, directed to Mr. Melchior Budacz, No. 1744 Eastern Avenue, has been referred to me, and in reply thereto I can only say that Mr. Budacz and wife are ready to give a good and marketable title to the property as referred to in your letter, and must decline to return the $200 as you request, and unless you make some effort at once to take title to this property, we will sell the same at the expense of your client.” That subsequently the attorney for the appellee had several telephone conversations with Mr. Budaez’s attorney, in which he told him that the appellee could not take title because of the outstanding prior contract of sale, and asked for a return of the money paid on account of the purchase price, which was refused; and on October 3rd, 1923, the following letter, signed by the appellee and his attorney, was sent to the appellant’s attorney: “October 3, 1923. “Mr. John A. Richardson, “1107 Continental Building, “Baltimore, Md. “Dear Sir: “Confirming my telephone conversation with you relative to the properties 2002-2007-2009-2011-2013 Lincoln court and 125 Jones court, covered by contract of purchase, under date of July 10th, 1923, between Melchior Budacz and Marie Budacz, his wife, of the first part, and I. Albert Fradkin, of the second part, which contract was assigned by I. Albert Frad-kin to Nathan Fradkin, 1 beg to say that Mr. Frad- ⁴⁰⁶ kin will accept title to tbe said properties, provided the time for settlement is extended for thirty days from this date. Kindly acknowledge this letter, agreeing to extend the time, so that Mr. Fradkin can have the title examined and prepare for the money to pay therefor. “You will recall that Mr. Fradkin would not accept title to the property heretofore, because of the existence of a contract of sale covering the same properties to someone else.

Yours truly, “Daniel Ellison, “Nathan Fradkin.” That at or about the date of this letter the appellee, by an arrangement with Samuel Frahm, was able to relieve the title of the defect of the contract of May 18th, and for this reason additional time was asked for in which to have the title examined and prepare mortgage for the money to be used in payment for the property. The record fails to* disclose any reply to the letter of October 3rd, but the fact is that no settlement was made, and no conveyance of the property; that on November 16th, 1923, the bill of complaint was filed in which it was alleged that the appellee was ready and willing to carry out his part of the agreement, but that the defendants refused to perform'their part of said agreement, and praying for a decree of specific performance. The appellants in their answer to the bill of complaint denied these allegations and averred that time being the essence of the contract, and the sixty days having expired without any attempt on the part of the plaintiffs tó perform their part of the contract, they are not entitled to any relief in the matter. By the written agreement of the parties, time was made the essence of the contract, and the decision in this case rests upon the question of whether, in a contract where the time of its performance is stated to be an essential part thereof and it is not consummated within the time limit, under such circumstances as set forth in the testimony above, the vendee is entitled to a decree for specific performance.

In agree- ⁴⁰⁷ menta for the sale of land time is not usually held to be of the essence of the contract, but if from the terms of the contract it is clearly shown that the parties so intended it, or, as in this case, where the parties expressly state such to be the agreement, it is generally given full force and effect. While it is true an application for specific performance is always addressed to the sound discretion of the court, yet where a contract respecting’ real estate is in writing: and