Finkelstein v. Miller

Sybbrt, J., delivered the opinion of the Court. On August 3, 1963, the appellants, Herman and Elizabeth Finkelstein, entered into a written contract of sale with the appellees, Peter and Frances Miller, under which the appellants agreed to sell and the appellees agreed to buy a tract of land, with buildings, located in Bucks County, Pennsylvania. The contract provided for a purchase price of $67,500, payable as follows: an initial deposit of $1,000, and an additional deposit of $5,500 to be paid by August 10, 1963, each to be paid into a real estate agent’s escrow account at a Bucks County bank, and the balance of the purchase price to be paid at final settlement on November 4, 1963, on which date the sellers were to deliver a deed. On October 3, 1963, the deposits mentioned in ⁵¹⁴ the contract not having'been paid, the appellants filed a bill of complaint in the Circuit Court for Montgomery County against the appellees seeking specific performance of the contract.

The appellants’ bill of complaint alleged, inter alia, that the appellees had refused to perform the contract and that they, the sellers, “were and always have been, and still are ready, willing and able to execute and deliver to the Defendants a deed to the premises and in all manner to perform the agreement on their part.” In their answer the appellees alleged that on or about August 8, 1963, the Finkelsteins and the Millers had agreed “to terminate, cancel, or rescind” the contract. The case came on for hearing before Judge Shook in August, 1964. The contract was admitted in evidence by stipulation. Mr. Finkelstein was the only witness.

He testified that he and his wife owned the property, that the Millers had failed to make the payments required by the contract, and that he and his wife were ready, willing and able to convey the property. On cross-examination, he testified that he had not yet executed a deed to the defendants. The plaintiffs closed their case at the end of Mr. Finkelstein’s testimony, whereupon the defendants made a motion to dismiss the bill of complaint. The defendants argued that the plaintiffs had not made out a prima facie case for specific performance because they had failed to prove that they could convey a marketable title and that they had tendered a deed to the defendants.

Judge Shook granted the motion to dismiss for the reasons advanced by the defendants and the sellers appealed. We shall first consider whether under the circumstances of this case the appellants were required to make a tender of a deed to the appellees. As noted earlier, the appellants alleged below that the appellees had, in effect, repudiated the contract of sale. In their answer to the bill the appellees admitted, in effect, that they had not performed under the contract and that they did not intend to perform.

While the Millers alleged that there had been a mutual agreement to cancel the contract, this was a matter of defense which they had the burden of proving. Although our attention has not been directed to any Maryland case holding that a vendor is not required to tender a deed as a ⁵¹⁵ prerequisite to maintaining an action for specific performance, we believe that tender was not required under the circumstances of the case before us. In the recent case of Darneille v. Geraci, 237 Md. 51, 57 , 205 A. 2d 55 (1964), we held .that it was unnecessary for a purchaser to make a tender of the purchase price before suing for specific performance where the seller had “expressed his intention not to perform.” See also Lissau v. Smith, 215 Md. 538, 545-546 , 138 A. 2d 381 (1958). And in the earlier case of Jaeger v. Shea, 130 Md. 1, 7 , 99 Atl. 954 (1917), where a vendor had refused to convey as required by a contract of sale, this Court stated that “* * * it is not necessary to allege and prove a technical tender [of the purchase money], but the averment in the bill of complaint of the purchaser’s readiness and ability to comply with the contract of sale is sufficient.” These cases stand for the proposition that where tender would have been futile it was not a prerequisite to a