Decrette v. Bonaparte

²⁵⁴ Briscoe, J., delivered the opinion of the Court. This is a bill in equity filed by the appellants, the plaintiffs below, against the appellee, the defendant below, for the 'specific performance of a contract of sale of all that lot of ground situate in Baltimore City, known as No. 6 South Oalvert Street, subject to an annual rent of twelve hundred dollars per annum, and also subject to a short term lease 1» the American Express Company. The contract is dated February 2, 1920, and is as follows: “Baltimore, February 2, 1920. “It is mutually agreed between Charles J. Bonaparte, of the first part, 'and Paul M. and Margaret DeOrette, of the second part, as follows: “The party of the first part agrees to sell and the parties of the second part agree to buy the property known as No. 6 South Calvert Street, in Baltimore City, fronting about 27 feet and running back about 156 feet, subject to a ground rent of $1,200 per annum, and also to a lease to the American Express Compnay, and free of all other liens and incumbrances, at and for the sum or price of $55,700, whereof $1,000 is paid at the time of signing these presents and receipts thereof hereby acknowledged, and the remaining $54,700 to be paid not later than June 1st next, on delivery or tender of a deed covering a good and merchantable title to the said premises, in accordance with the contract; provided that if such good and merchantable title cannot be conveyed by the party of the first part, the said $1,000 is to be returned and both parties released from this contract. Taxes, ground rent, water rent and rent under the lease aforesaid are to be adjusted to the time of passing title. “Witness the hands of the said parties on the day and' year first above written. “Charles J. Bonaparte, “Paul M. DeOrette, “Margaret DeOrette, “By J. R. Staum, their Attorney.” ²⁵⁵ The amended bill, filed on the 3rd of August, 1920, sets out the contract and then charges: Second: That at the time of the signing of the contract, the plaintiffs were conducting upon the premises the business of a lunch room on the cafeteria system, and had installed numerous fixtures for the purpose of the business, and had made alterations in the premises at a great expense to themselves ; that since the signing of the contract they have undergone other and additional expense tending to enhance the value of the property.

Third: That on or about the 14th day of Juno, 1920, the plaintiffs being then and there desirous of completing the transaction and paying to the defendant the sum due to him, as a balance of the purchase price for the property, advised the defendant to that effect, and requested him to make an appointment for the execution of the proper deeds for the conveyance of the property, and were informed by the defendant that he considered the contract at an end and had sold the property to other parties, the names of whom are unknown to the plaintiffs. And they further aver that, while the contract provides for settlement asi of June 1st, the defendant never treated the time of settlement as of the essence of the contract, and in fact from time to time extended the time of settlement for the property. Fourth: That the plaintiffs have performed all the requirements of the agreement on their part to be performed, but the defendant refuses to make a conveyance of the property, as he is in duty hound to do. The prayer of the bill is, that the contract bo specifically enforced and that the defendant may he decreed to convey unto the plaintiffs the property in question, upon the payment of the balance of purchase money still due and owing to him, and for general relief.

The defendant, in his answer, admits the execution of the contract and also the payment to him of $1,000, mentioned in the contract. ²⁵⁶ Second: The defendant avers that at the date of the contract, the plaintiffs were sub-tenants of a portion of the property by virtue of a sub-lease made to them by the American Express Company, but he denies that, since the date of the agreement with him, they have expended any appreciable sum or sums of money in enhancing the value of the property. Third: BCe further avers, that on May 17, 1920, he addressed a letter to the present solicitor of the plaintiffs, with whom all the negotiations connected with the contract had been held, and which letter is as follows: “The date of the consummation of the sale of Ho. 6 S. Oalvert Street will be two weeks from tomorrow, and as the amount is rather large, I wish to make certain arrangements as soon as possible thereafter, for which arrangements it is needful that I should give some preliminary notice. I write, therefore, to enquire at what hour on Tuesday, June 1st, your clients will find it convenient to consummate the transaction, and also whether it will suit you and them to do this at my office, or if not, at what place you desire to have it done.” (Marked Defendant’s Exhibit A.) Fourth: The defendant further avers that, in response to this letter, the solicitor- of the plaintiffs called several times at the office of the respondent, but never fixed any hour or place to consummate the sale, but lamented the difficulties encountered by his clients in raising the money to pay the stipulated price and the usurious rates of interest demanded of them, and urged the defendant to'allow a part of the purchase price to remain secured by a purchase money mortgage, which the defendant could not consent to do. Finally, this defendant on June 4, 1920, sent the following' letter, addressed to the present solicitor of the plaintiffs-, and marked Defendant’s Exhibit B: “I am sorry to have to be so positive, but, unless your clients are in a position to close the transaction ²⁵⁷ between us, in accordance with the terms of our contract on Monday next, 7th inst., 1 shall be obliged to treat the deposit as forfeited and the transaction as abandoned.

This is really necessary for my protection against loss.” Fifth: The defendant also avers that the present solicitor for the plaintiffs thereafter made by telephone several ap*pointments to see the defendant, hut failed to keep the same until, on June 14th last past, this defendant called up the office of the representative of the plaintiffs and stated, in substance, that he was about to close with another offer for the said property, and wished to know if the plaintiff had any thing to say on the subject. Whoever answered the said telephone then stated that the present solicitor was absent from his office. Later, on the same day, this defendant received a message to the effect that the plaintiffs had made arrangements to consummate the sale, and therefore he wrote the present solicitor a letter, which is marked Defendant’s Exhibit C, and is as follows: “June 14, 1920. “I am duly in receipt of your note. I regret to say that I am no longer free in regard to the matter, having been obliged, from a reasonable regard for my own interests, to close with the offer which was made to me and which I have had under consideration during our recent negotiations, but could not, of course, act upon so long as you might be in a position to put through our transaction.

T cannot now waive your failure to comply with the terms of the contract without the consent of the other parties to the new agreement, and T do not think I can obtain such consent. I have, however, yonr deposit, and I am prepared to return this (although I do not, of course, feel bound to do so) in view of the disappointment of your clients and your own. I shall be at my office on Thursday next, and I suggest that you see me some time between 11 A. M. and 4 P. M.” ²⁵⁸ Sixth: The defendant also avers that, between the dates of defendant’s Exhibits A and 0, the defendant had been approached by certain other parties with a proposal for the purchase, of the property mentioned in the contract of February 2nd. He had told the plaintiffs’ present solicitor of this proposal, and the reference to his protection against loss in defendant’s Exhibit B was, and was understood by the plaintiffs’ present solicitor, to have then been occasioned by his unwillingness to lose the sale of the property in question.

Thereafter, to wit, on June 14th last past, this defendant entered into a contract for the sale of the property, at the same price mentioned in the contract of February 2nd. This defendant, denies that he failed to treat the time of settlement as of the essence of that contract, and refers in proof of this statement to defendant’s exhibits A and B. This defendant holds the sum of $1,000, heretofore paid him on behalf of the plaintiffs, as a deposit made for their benefit, is prepared and willing to pay over the same to the plaintiffs, upon the dismissal of the present suit, and prays that the bill be dismissed and that he may be discharged with hisi legal costs. The testimony of a number of witnesses on the part of the plaintiffs and defendant was taken in open court, and from a decree of Circuit Court Ho. 2 of Baltimore City, dated the 20th day of January, 1921, dismissing the bill of complaint, with costs to the defendant, the present appeal has been taken. The law is well settled in this State, in cases of this character, that a court of equity will not decree specific performance in a doubtful case.

The plaintiff is bound to make out his case by satisfactory proof, and must show that he has performed or was ready to perform his part of the contract, and has not been guilty of laches or unreasonable delay. Penn v. McCullough, 75 Md. 229 ; Thistle Mills Co. v. Bone, 92 Md. 57. The contract of sale in this case, it will be seen, is plain and explicit and free from dispute. By its terms the defend ²⁵⁹ ant acknowledged the receipt of the sum of $1,000 on account of the purchase money, and the remaining $54,700 to he paid not later than June 1st, 1920, on delivery or tender of a deed covering a good and merchantable title to the property, in accordance with the contract.

On May 17, 1920, the appellee wrote a letter to the attorney for the appellant, in which he stated that the day for the consummation of the sale was “two weeks from tomorrow,” and as the amount was rather large, he desired to make certain the arrangements about it. He wrote to inquire at what hour on Tuesday, June 1st, his clients would find it convenient to