Goldberg v. Anastasi

Singley, J., delivered the opinion of the Court. This dispute had its origin on 12 April 1972, when Montgomery Realty Company, Inc., agent for the appellees, Joseph F. Anastasi and others, trading as Trio Associates ⁶² (Trio), accepted a contract submitted by the appellants, Richard S. Goldberg and R. S. Goldberg Associates (Goldberg), under which Goldberg contracted to purchase an office building at 850 Sligo Avenue, Silver Spring, Maryland, for $905,000.00. A contract provision called for a deposit of $10,000.00, which was seemingly satisfied by the delivery of Goldberg’s note for $10,000.00, bearing no interest, and payable at time of settlement, which was to be within 60 days of the acceptance of the contract. When Goldberg failed to consummate the purchase within the time specified by the contract of sale, and had, for some unexplained reason, either never executed the note which was to represent the deposit, or had recovered it, Trio brought suit in the Circuit Court for Montgomery County for $10,000.00, the amount of the deposit, plus interest.

From a judgment in Trio’s favor for $10,000.00; Goldberg has appealed. In entering the judgment from which this appeal was taken, the trial court concluded that Goldberg had breached the contract and that Trio was entitled to a forfeiture of the deposit. Because we reach a contrary conclusion, we shall reverse the judgment entered below. The contract of sale called for Goldberg to comply with its terms “within 60 days from the date of acceptance hereof by the owner, or as soon thereafter as report on title can be secured, if promptly ordered; . . . .” At settlement, $805,000.00 (of which $10,000.00 was to consist of the deposit) was to be paid in cash, the balance of the $905,000.00 purchase price to be represented by a $100,000.00 second purchase money deed of trust, maturing in three years, with interest at 7%.

Attached to the contract was an addendum, signed for Trio and by Goldberg. Paragraph 5 of the addendum provided: “That settlement shall take place within 60 days from execution of said agreement. Joseph Anastasi [the owner of a one-third interest in Trio] and Carl Lipoff [an associate of Goldberg’s] have agreed to ⁶³ fly to Atlanta, Georgia, and get a mortgage commitment to settle in 60 days. If no commitment can be obtained to settle at that time this contract will be voided and the Note shall be returned to Buyer [Goldberg].” It is clear from the record that a mortgage commitment was obtained by 19 May 1972 which remained available until 26 May.

It was the availability of this commitment which led the trial court to the result reached below. Unfortunately, the commitment itself was neither before the lower court nor in the record before us. There is in the record extract, however, the text of an agreement with Scott Hudgens Realty and- Mortgage, Inc., a mortgage brokerage firm in Atlanta through which Goldberg and Lipoff were expecting to arrange the loan. It is clear, moreover,