Jones v. Saah

Finan, J., delivered the opinion of the Court. In December, 1966, the appellees (Saahs) entered into identical contracts with appellants Jones and Ray. Each contract provided that the appellants would sell certain lots to the Saahs for $28,800, and that each of the appellant-sellers would take back a first deed of trust for $20,-400 in order to finance the purchase of the property, this deed of trust to be subordinated to a construction loan should the Saahs build on the property. Each of the contracts was “subject to 1-1 zoning approval to be obtained and paid for by the purchaser [appellees] and each contract contained the following pertinent “Special Provisions”: “1.

Purchaser to apply for Zoning on or before May 30,1967. “3. Settlement to be made within 30 days after approval of Zoning to 1-1. “4. In the event said zoning is not secured by May 30, 1968, this contract shall become Null ³⁴² and Void and both parties shall be relieved of any further liability, and in that event the deposit of Two Thousand Dollars ($2,000.00) shall be returned to purchaser [appellees] without further question.” The appellees applied for the necessary zoning before May 30, 1967, but it was apparently not granted in time. On May 6, 1968, without the required zoning having been accomplished, the Saahs notified the appellants that they intended to settle on May 23, 1968.

The appellants did not appear, and on July 16, 1968, notified the broker that the contracts were null and void, and that he should return the deposit to the Saahs. The Saahs filed separate suits for specific performance on both contracts in the Circuit Court for Montgomery County and the actions were consolidated at trial. On August 10, 1970, Judge Shook ordered specific performance of each contract for the following reasons: “The Court finds from the evidence that the language in Paragraph 4 of the contract was beneficial to the purchaser and in no way affected the sellers. “The Court finds from the law under the case of Sears v. Polan’s, 250 Md. 525 , that the purchasers are now entitled to specific performance. The Court does find that that case is on all fours with this and feels that it must grant the relief prayed.” We are of the opinion that the lower court’s reliance on Sears v. Polan’s was misplaced, and the decision which followed was in error.

Accordingly, we reverse. In Sears v. Polan’s 50 to $1.00 Store of Annapolis, Inc., 250 Md. 525 , 243 A. 2d 602 (1968) a decree of specific performance was granted to the purchasers of certain real estate. The contract of sale in Sears provided that upon acceptance the purchaser was given 90 days in which to conduct certain tests on the land, and 10 days ³⁴³ after that in which to submit an application for rezoning of the tract. Also, the contract expressly provided that the purchaser was given the right to waive the rezoning condition.

Because of the conversion then taking place in Anne Arundel County from county commissioners to a charter form of government, many zoning applications, including that of purchasers in Sears , lay dormant. After many delays in obtaining rezoning, the purchasers elected to waive the rezoning condition. The only argument made by the sellers in Sears which is pertinent to our