Messina v. Moeller

Hammond, J., delivered the opinion of the Court. The chancellor sustained a demurrer to a bill filed by the purchaser against the sellers for specific performance of a contract covering real estate because he found that there was no mutuality of remedy. The purchaser appeals. The contract was for two lots in a subdivision in Montgomery County.

The purchase price was $11,000, of which SI,100 had been paid at the signing of the contract and the balance was to be paid in cash at settlement, some thirty-five days later, or “as soon thereafter as a report on the title can be secured, if promptly ordered”. It was further agreed that settlement need not be made until the lots were approved for septic tank installation by the Montgomery County Board of Health. (The approval was to be sought by the sellers.) If they were not, the deposit was to be returned to the purchaser and the contract was to be of no effect. The contract was prepared on a printed form and in the printing were these ¹¹² words relating to the obligation of the purchaser to settle at the proper time: “If the purchaser shall fail so to do, the deposit herein provided for may be forfeited at the option of the seller, in which event the purchaser shall be relieved from further liability hereunder or without forfeiting the said deposit the seller may avail himself of any legal or equitable rights which he may have under this contract.” The parties struck out the last twenty-four words of the quoted clause so that there was deleted the explicit right of the sellers to avail themselves of any legal and equitable remedies they might have under the contract.

The bill of complaint alleges that the purchaser is ready, willing and able to perform his part of the contract but that the sellers have refused to do the things necessary to obtain approval of the lots for septic tank installation and have informed the purchaser that they do not intend to convey the property to him, in accordance with the terms of the contract. Prayers of the bill are that the sellers be required to take the necessary steps for approval of the lots for septic tank installation and that “the said August Moeller and Rine Moeller, his wife, may be .decreed to convey unto your Orator the aforesaid premises in accordance with the agreements as aforesaid, upon payment of the purchase money due and owing by your Orator.” The demurrer, among others, relies on the ground that “* * * since the said contract could not be specifically enforced as against the Plaintiff, it is wanting in mutuality and cannot be enforced in equity against the defendants”. The chancellor stated in his opinion that the sole question before the court was: “Is there mutuality of remedy, and if not, is mutuality of remedy necessary to decree specific performance?” He held that the contract did not provide for mutuality of remedy and that this want rendered specific performance unavailable to either of the parties, and sustained the demurrer on this ground alone. In this Court the parties have accepted fully the premises of the chancellor.

The appellant has argued that the contract was not wanting in mutuality of remedy and the appellees have argued that it was. It may well be, as the appellant ¹¹³ says, that there is no lack of mutuality of remedy, on the authority of Rogers v. Dorrance, 140 Md. 419 , and Armstrong v. Stiffler, 189 Md. 630 , but as we see it, it is not necessary to decide the point for the case turns on another proposition. If the argument of the sellers be accepted in the light most favorable to them, the contract entered into, which clearly is not illusory but real, gave the purchaser the choice of whether or not he would pay the balance of $9,900 (the difference between the $11,000 purchase price and the $1,100 deposit) at the time of settlement, or as soon thereafter as the sellers had arranged for septic tank approval, or whether he would disavow the contract and permit the sellers to keep the $1,100 deposit.