Emkey v. Siegel

Marbury, C. J., delivered the opinion of the Court. On March 26, 1947, the appellants, owning a fee simple property No. 101 Bennett Road in Essex, Baltimore County, Maryland, signed a standard contract of sale by which they agreed to sell the property to the appellee for $5,500. $100.00 was paid at the time of the signing, and ⁵⁷³ the balance was to be paid in cash within six months from the date of the contract, it being stated therein that time was of the essence. Two days after this contract was executed, Emkey stated he went with the real estate agent who handled the contract, to see the appellee and told the latter that he was not going through with the deal, and that the appellee said he was going to do nothing about it. This is denied by the real estate agent, Mr. Inman, who said that Emkey did go with him to see Siegel but the conversation related by Emkey did not take place.

Siegel denied that Emkey ever went with Inman to see him, and said he did not believe he had ever spoken to Emkey. About the same time the contract was signed, another contract, dated March 27, 1947, was made by the appellants with some people named Gardner, for the purchase of No. 107 Alcock Road, also in Essex. The check which the Emkeys received for their property was endorsed by them, and turned over to the Gardners as a deposit. Their contract with the Gardners was to pay $1500 in cash and to get a mortgage for the balance on which they would have to pay $38 a month.

This contract was to be settled within sixty days. On May 29, 1947, just a little more than two months after the signing of the contract, the Emkeys’ attorney notified Siegel that they declared the contract null and void for three reasons, first, they never received an executed copy of it; second, they never received the consideration of $100; and, third, on account of misrepresentation. Siegel’s attorney wrote the Emkeys’ attorney on June 19th, stating that Siegel would expect the appellants to perform the contract within the period stipulated, and that he would like to know whether they would so perform. There was no answer to this letter, and no further written communication between the parties.

It appears from the testimony that Emkey was laid oft, where he was working. He went to the finance people, and they would not accept his mortgage on the Gardner property, because he was not working. As a ⁵⁷⁴ result, he made no effort to go through with the Gardner contract, and the Gardners did nothing about enforcing it. He did not get back his deposit from them, and Siegel never got back his deposit from the Emkeys although the record does show an admission from Siegel that it was offered.to him later, but just when he does not state.

He declined to accept it. Another fact which should be noted, is that Emkey testified that he got the impression that the appellee was not going to press the matter, and, a few weeks before suit was filed, he put an archway between his kitchen and living-room. This was sometime in January, 1948. Nothing further happened until February 2, 1948, when the bill of complaint in the present case was filed by Siegel to compel specific performance by the Emkeys.

The Emkeys answered denying due diligence by the appellee. The court below held that there were no facts in the case indicating that the Emkeys had been prejudiced by the delay, and decreed performance. From this decree the Emkeys appeal. We have had occasion in two recent cases to consider the position of a complainant who belatedly seeks, through the medium of a court of equity, to compel another party