Horwitz v. Kreuzer

Stockbkidge, J., delivered the opinion of the Court. To the bill of complaint as first filed in this case the defendants demurred, and an amended bill was filed making an additional party. The case arises from a sequence of facts which, as alleged in the bill, were as follows: On the 27th of October, 1919, Barbara Kreuzer entered into a written contract by which she agreed to sell to Wilson B. Stringer the property and premises known as No. 214 North Calvert Street in Baltimore City for a consideration of $12,000, and, of the amount of the purchase money, $500 was paid in cash and the balance was to be paid on or about November 27th, 1919. On November 20th, Stringer obtained from Barbara Kreuzer au extension of time within which to complete his purchase and, while this contract was in force, Stringer sold the property to one Myerberg for the sum of $11,000.

Six days after the contract for this sale had been signed, Myerberg made a contract to sell the ⁴¹⁶ property to Iiorwitz, the appellant, for the sum of $15,500. All of these contracts for these successive sales) are alleged to have been in writing, and in none of them was the time of completion of the contract declared to he of the essence of the contract. During the time that matters stood in this condition, Mrs. Kreuzer sold the property to Charles J. Dobler for the specified consideration of $17,500, and which last mentioned contract has been in part performed and carried out by the execution, on the 17th of July, 1920, of a deed and certain mortgages. To this amended hill a demurrer was filed by the defendants, Wilson B. Stringer, Barbara Kreuzer, and Charles J. Doblei*.

Of the various contracts of sale the only one appearing in the record is that between Hathan J. Myerberg and Samuel Horwiitz, nor is the agreement for* the extension of time included in the record, or even a statement of the length of time for which the extension was given. The amended hill asks for a decree for the specific/ performance to Horwitz of the contract between Mrs. Kreuzer and Stringer. The demurrers alleged two grounds of demurrer, first, a lack of privity between Mrs. Kreuzer and Mr. Horwitz; and second, laches. A third might have been set. forth, in the failure to include among; the pleading's and in the record certain of the papers alleged to' have been executed, a failure which, under numerous decisions of this court, is necessarily fatal to the maintenance of such a hill.

Tt is also to he noticed that nowhere in the hill does Mr. Horwitz allege his ability to carry out the terms of the contract made hv him with Myerberg. This too is an allegation always necessary to sustain such a bill. Pie does allege his readiness and willingness to- carry it out, but stops there, and the ability of performance is just as important as is a willingness to do so. Mr. Miller, in his