Fox v. Grando

Henderson, J., delivered the opinion of the Court. Mollie Grando, formerly Mollie Hardy, on October 15, 1948, filed a bill for specific performance of a contract for the sale of leasehold property No. 1711 Calhoun Street in Baltimore City. After hearing, the Chancellor decreed specific performance, conditioned upon her paying into court the balance found to be due by the Auditor. The testimony shows that on June 9, 1937, the appellee and her husband, Edward Hardy, entered into an installment contract, evidenced by a filled-in, printed form, for the purchase of the premises, subject to a ground rent of $65, for the price of $2,600.

The terms were a down payment of $30, weekly payments of $15, until $200 was paid on the principal, $12 weekly until $600 was paid on the principal, when a “building association mortgage” for the balance was to be supplied by the vendor and a deed delivered. The down payment was made and the vendees went into possession. The agreement provided that in the event of default in any weekly payment the vendor might, without notice, ⁶⁵ consider the agreement as ended, and retain the prior payments as liquidated damages, or, at the vendor’s option, enforce the contract. Another clause provided that in the event of default, the vendor might consider the purchaser a tenant and be entitled to the benefit of local laws relating to eviction.

There was no provision that time should be of the essence. The record shows that payments of $15 per week were made until November 6, 1937, and credited in the amount of $8.63 (or $8.75) to “dues”, balance to “interest” and “expense”. On that date a total of $212.67 had been credited to principal [“dues”]. Thereafter, payments varied between $10 and $12 per week until July 30, 1938, when a total of $409.14 had apparently been credited to principal.

The next entries begin October 1, 1938, as “rent”, $8 per week, until November 19, 1938, when the entry is “rent” $7.50 per week, or $15 every two weeks, continuing with fair regularity to April, 1941, then at $9 per week to June 20, 1942, then at $15 every two weeks to the date of the decree appealed from. The appellee testified that her husband left her in November, 1937, after assigning to her, through a straw man, all his right, title and interest in the property. They were subsequently divorced. She testified that some time later she told Mr. Fox, the husband and agent of the appellant who had negotiated the sale, that she could not keep up the $10 payments because her husband had left her; that Mr. Fox insisted that she keep on with the contract and told her just to “keep the interest and expenses going, that he would go along with me.” He stated that if the contract were terminated he would lose the broker’s commission he had paid.

Her account of this interview was corroborated by her brother and her son who were present. They were both definite that Mr. Fox said nothing about her becoming a tenant or losing the money she had paid on the principal. Later, when she saw that he had entered the word “rent” on her book, she said to Mr. Fox: “You put ‘rent’ in there”, ⁶⁶ and he replied: “No, you are buying the house on those terms, pay like rent.” Mr. Fox did not deny having a conversation with the appellee in November 1937 as to the payment of interest and expenses. He testified: “She said she could pay for a while only that much.

I said that was all right. Things were depressed at that time, you know, and I told her it was all right.” He testified, however, that in August, 1938, he had