Koman v. Holtgreve

Hammond, J., delivered the opinion of the Court. The appellant, Max Koman, and two of the appellees, Herman W. and Clarence E. Holtgreve, entered into a contract of sale on April 15, 1954, whereby the appellant agreed to purchase and those appellees agreed to sell a property and the grocery and meat business which had long been conducted therein. The selling price was $30,000.00 and $3,000.00 was paid as a deposit. In the contract of sale the sellers warranted that the weekly receipts from business during the week beginning April 19 and ending April 26, would be not less than $2,500.00, of which not more than $500.00 would be on credit.

The contract provided that if these conditions were not met, the buyer, at his option, could call off the sale and reclaim the $3,000.00 deposit. At the conclusion of the test week, the buyer claimed that the cash sales for the period had been under $2,000.00 and demanded the return of the deposit. When it was not forthcoming, he sued the sellers and the real estate broker, who had received, and was holding, the deposit, for the amount thereof. The court, sitting without a jury, found for the defendants and the appeal is from the judgment in their favor.

It is agreed that the sales for the test week totalled $2,608.81 and that of this amount $487.25 represented groceries and meat which had been sold during the week and had not been paid for at its close. $1,821.56 represented sales in which the price had been paid at the ⁸⁸ time of purchase and $300.00 represented the price of supplies which had been sold during the week but paid for, in whole or in part, later in the week. The appellant contends that the $300.00 received and rung up on the cash register during the week, for sales made earlier in that week, were payments for sales on credit which, added to the sum of $487.25, the agreed credit sales, made total sales on credit of $787.25 and cash sales of but $1,82Í.56, which was below the guaranteed figure. Appellees, on the other hand, argue that the $300.00 received during the week for sales made earlier during the week were cash sales and that, therefore, the total cash sales were $2,121.56. The literal meaning of the term cash sales and its general legal meaning do not differ significantly.

A cash sale ordinarily is one where delivery and payment are to be concurrent acts, which are to be performed at the same instant of time. Foley v. Mason, 6 Md. 37 ; Lawder & Sons Co. v. Mackie Grocery Company, 97 Md. 1, 13 ; Hall v. Richardson, 16 Md. 396, 411 ; Anglo-American Provision Co. v. Prentiss (Ill.), 42 N. E. 157, 160 ; and 2 Williston Sales, Rev. Ed., Secs. 341, 342, 343. The provision in the warranty that total weekly receipts shall not be less than $2,500.00, of which not more than $500.00 shall be “on credit”, necessarily means that at least $2,000.00 shall represent cash sales. The appellant must prevail unless custom or usage were proven to show that the terms were used with a different and controlling meaning, or unless other provisions of the contract itself bring about a different meaning.

The trial court, in its opinion, said that the contract had to be construed “with reference to the type of business involved, and with reference to the knowledge of the business by the respective parties.” If we assume, without deciding, that usage and custom, properly proven, sufficiently general and known to the parties, could alter the apparent meaning of the contract, we find nothing in the evidence to show any custom or usage of the grocery business as to cash sales and credit sales, or that the knowledge of the ⁸⁹