Latrobe and Whistler v. Winans

Pearce, J., after stating the facts as above, delivered the opinion of the Court. The first contention of the defendants, the executors ot Wm. L. Winans, is, that this contract having been made in England for performance there, and having been in fact carried out in that country, the lex loci contractus must govern, and that by the common law of England no interest can be recovered in an action upon such a contract, not providing for interest, and therefore this decree, which allows some interest, is erroneous and should be reversed. We do not, however, regard this contract as one made, or to be performed, in England, and to be governed by the law of that country.

The subject-matter relates to real estate in Maryland, and the general rule in such cases is that the lex loci rei sitcz governs. 2 Parsons on Contracts, 8th ed. p. 686. Upon the mailing by plaintiffs of their acceptance of Wm. L. Winans’ offer, the bargain was complete, subject only to the contingency that the acceptance reached him on or before August 31st, 1895. It was not in his power, after plaintiffs’ acceptance was mailed, and before that date, to withdraw his offer.

Wheat v. Cross, 31 Md. 103 ; Tayloe v. Merchants' Fire Ins. Co., 9 Howard, 390 . When notice of acceptance reached Wm. L. Winans it related back to the date of acceptance.

The contract was thus actually made in Maryland, the offer having been both received there and accepted there, within the time prescribed for its acceptance. The contract, it is true, required the deeds, when executed, to be submitted to Wm. L. Winans, in England, for his approval and acceptance, but it named no locus solvendi, and the general rule therefore applied, requiring the debtor to seek the creditor for payment. The case of Costigan v. Sewell, 6 Gill, 232 , cited by defendants in support of their contention, we regard as sustaining the ⁶⁴⁸ view we here express, and not the contrary.

We have no occasion, therefore, to consider the English authorities relied on by defendants, to show that the allowance of any interest was erroneous. Our own law must determine whether any interest, and, if so, what, is recoverable. The doctrine of our Courts is that this subject is not susceptible of any fixed or general rule of law, since no two cases present the same aspect, but each must depend upon its own peculiar circumstances. There are cases, other than those of bonds, in which interest is recoverable as of right, such as on a contract in writing to pay money on a day certain; and even where not recoverable as of right, its allowance is in the discretion of the jury, according to the equity and justice appearing between the parties on all of the circumstances disclosed at the trial.

Newson v. Douglas, 7 H. & J. 454 ; Frank v. Morrison, 55 Md. 408 . And in the matter of allowing interest, equity follows the law. Hammond v. Hammond, 2 Bland, 370 , Brantly’s note m. The next contention of defendants, and that upon which most reliance was'placed, both in the oral argument and in the brief of their counsel, was, that by the express terms and conditions of the contract, the purchase money should not be payable until a deed of the land, and an assignment of the patents should be executed by plaintiffs, and be submitted to Wm.

L. Winans, in England, and be by him accepted as satisfactory ; and that as, in fact, such executed deeds were not submitted to him in his lifetime, he was never in default; and that as there is no evidence to show that his executors did not, within a reasonable time after the delivery of executed deeds to Brown, Shipley & Co., examine and approve the same and pay the purchase money, they were not in default, and hence no recovery of interest can be had against the estate of Wm. L. Winans. This defence, both by reason of the authority cited in its support, and in deference to the opinion of the learned and careful Judge who sustained the defence so far as to deny ⁶⁴⁹ any default on the part of Wm. L. Winans, in his lifetime, requires careful consideration.

The defendants plant themselves upon the doctrine of this Court as stated by Judge Alvey, in B. & O. R. R. Co. v. Brydon, 65 Md. 225, 226 , and claim that the rights of Wm. L. Winans, under the contract at bar, are conclusively settled in his favor by that case. There, an action was brought by the vendor upon a contract for delivery of a large quantity of coal of such quality as should be satisfactory to the railroad’s master of transportation and master of machinery. After delivery of a portion had been made, the railroad refused to receive further deliveries, because the officials named pronounced it unsatisfactory.

The Court ruled, that if this objection was not made in good faith, the action could be maintained, and the plaintiff had a verdict and judgment, which judgment, on appeal, was affirmed by this Court. On a motion for reargument the motion was overruled, Judge Alvey using the following language: “ In cases where it is stipulated that an article to be furnished shall, unqualifiedly, be satisfactory to the party to whom it is to be supplied, the right to reject the article, as not being satisfactory, cannot be inquired into ; but the party’s own determination must be taken as final and conclusive * „ * *. It is quite permissible to parties to enter into such contracts, and where the approval or satisfaction of the party is made a condition precedent to the right to receive compensation, or the contract price, for the article to be delivered, the Court has no power or right to dispense with the condition, and say that the article was of a quality or character that ought in reason to have been accepted as satisfactory. If the plaintiffs think proper to enter into such conditional contract, it is not for any one else than the defendant to say that he ought to be satisfied; that is a matter expressly reserved to the defendant to decide for himself, and the reasons or motives for the decision, whether reasonable or unreasonable, good ⁶⁵⁰ or bad, are placed by the contract beyond.question or investigation.

For. instances of this class of contracts, and as illustrations of the application of the principle here stated, I may refer to the cases of Andrews v. Belfield, 2 C. B. (N. S.), 779; McCarren v. McNulty, 7 Gray, 139 ; Brown v. Foster, 113 Mass. 136 ; Zaleski v. Clark, 44 Conn. 218 ; Rossiter v. Cooper, 23 Vt. 522 ; Hart v. Hart, 22 Barb. 606; Gibson v. Cranage, 39 Mich. 49 ; Wood Reaping Co. v. Smith, 50 Mich. 565 .” An examination -of the cases cited by Judge Alvey, above, discloses that they all relate either to the manufacture or furnishing of some article, or the rendering of some service involving personal taste, feeling or judgment, such as the painting of a portrait, the execution of a statue or bust, the making of a suit of clothes, or a lady’s dress, the manufacture of a book-case designed to harmonize with other house furnishings, the sale of a riding or driving horse, the use of a reaping machine, or similar instances. In all such cases, as in the case of coal for steaming purposes, there can be, we think, no doubt of the correctness of the principles declared by Judge Alvey, but we have been referred to no case in which these principles have been applied to the title of land, and we do not think it follows from any of the cases cited, that they would be so applied. In the recent case of Pennington v. Howland, in the Supreme Court of Rhode Island, 41 At.

Rep. 891 , where suit was brought to recover the contract price for a portrait painted of defendant’s wife, many of the cases cited by Judge Alvey, with others, were reviewed, and the Court, in discriminating the cases which do from those which do not stipulate for personal satisfaction as distinguished from satisfaction as to quality, workmanship and other like considerations, says: “ If one agrees to sell land with a satisfactory title, and shows a title valid and complete, the parties must have intended such a title to be satisfactory, rather than to 'leave an absolute right in the purchaser to say ‘ I am not satisfied,’ when no reason could be shown why he.was ⁶⁵¹ not satisfied.” So in Fagen v. Davison, 2 Duer, 153 , it was said: “A title which is required to be satisfactory to the party by whom it is to be received, means a title to which there is no reasonable objection, and with which the party ought to be satisfied. Such a title he is bound to accept. ” And in Lord v. Stephens, 1 Younge & Collyer, 222, the the clause in question, was: “ In case the title shall not be satisfactory to the said Richard Stephens, these presents shall be void to all intents and purposes,” and Lord Abinger held that the purchaser could make no other than the usual objections. But without attempting to decide whether the title to land is excluded from the operation of the rule under consideration, it is to be observed that in Brydon’s case, as in all those like it, the question was whether the defendant could be required to' accept and pay for the article in question, when he had stipulated he should not be required to do so, unless it was satisfactory to him — in other words, whether there was any enforceable contract at all, if the article was not satisfactory to him. In such case his dissatisfaction with the article avoided the contract, and both parties were released from its obligations.

Butin the present case, the question is not whether there is an enforceable contract, but when it was to be performed by the parties, and what duties were by it imposed upon each in its performance. Wm. L. Winans never repudiated the contract or declared he would not perform it. On the contrary, he steadily maintained his right to retain the purchase, though he failed to indicate to the plaintiffs the grounds of his dissatisfaction with the form of deeds tendered without execution, but with his assent for examination m ample time for completion of the purchase before the date fixed by him for that purpose.

He stood in his lifetime, and his executors stand now, upon the technical defence that executed deeds were not tendered for his examination, and that this was a condition precedent to the expression of his