Seldeen v. Canby

Singley, J., delivered the opinion of the Court. In 1965, Dr. and Mrs. H. K. Vann sold their 150-acre farm in Montgomery County to Seldeen as trustee of an undisclosed trust. The record does not reveal what Seldeen paid for the farm but $368,450.98 of the purchase price was evidenced by the purchaser’s promissory note, secured by a purchase-money deed of trust. The note, as described in the deed of trust, called for a $20,000 payment in reduction of principal on 6 January 1966, with interest at the rate of 6% payable annually on the unpaid principal balance for three years commencing 17 August 1966, which amounts were paid.

The deed of trust continued: “The remaining principal balance * * * shall be paid in five equal, successive annual installments; first of such installments to be due and payable four years from the date of settlement [17 August 1969] or thirty (30) days from the date of official notification from the public utility supplying public water and sewer services that such services are available to serve the subject property, whichever occurs later; * * Mindful of the significance of the 17 August 1969 date, counsel for Dr. and Mrs. Vann inquired of Washington Suburban Sanitary Commission (the Commission) early in 1969 regarding the availability of water and sewerage ⁵²⁸ at the tract. The Commission’s secretary replied on 7 March 1969: “In response to your question concerning the availability of water and sewer to the Vann property, sewer service can be provided by this Commission in accordance with the provisions of Paragraphs 1 and 2 [which provided that the Commission was authorized by the Council to provide sewer service to areas being developed in accordance with the master plan] under the ‘Now Therefore’ clause of Montgomery Council Resolution 5-3032, September 6, 1966. Water service is also available from Georgia Avenue upon proper application and payment of such contributions as may be required by the Commission.” Relying on this letter, counsel for Mrs. Vann demanded that the first of the five annual payments discharging the principal of the debt be made on 17 August 1969. When payment was not forthcoming, an action was instituted in the Circuit Court for Montgomery County by the appellees Canby and Council, as substituted trustees under the deed of trust, to foreclose the deed.

Seldeen countered with a petition praying that the foreclosure be enjoined and that the rights of the parties be declared. From a decree denying injunctive relief and declaring that the first installment of principal became due and payable on 17 August 1969, Seldeen has appealed. Seldeen would have us reverse the decree of the lower court for three reasons: (i) that the court erred in determining that public water and public sewer were “available to serve the subject property” in view of the evidence presented; (ii) that the court erred in finding that the letter from the secretary of the Commission was the “official notification” required by the deed of trust, and (iii) that the court erred in rejecting Seldeen’s testimony as to the intent and meaning of the deed of trust. ⁵²⁹ (i) In support of his contention that the evidence does not justify the court’s finding that utilities were available,. Seldeen makes much of the fact that water was no closer to the tract in 1969 than it was in 1965 and that while a. sewer has been installed in Batchellor’s Forest Road, on which the Vann farm had a small frontage, it was an 8 inch line, laid in 1968 to serve the Sherwood-Olney Middle School, and was conceded to be too small to serve theVann tract from its Batchellor’s Forest Road frontage.

The difficulty is that Seldeen attempts to treat “available” as if it were a synonym of “furnish” or “deliver.” There was testimony that the water stub, which was. there in 1965, is 1,200 feet from the Vann farm, and that a stub on a 10 inch sewer line, installed in 1968, is 800 feet from the Vann farm. In 1965, the nearest sewer had', been several miles away. The appellant’s expert testified! that the sewer stub had been installed with a future northwesterly extension (in the direction of the Vann farm) in mind, and that the 10 inch line would be adequate for this purpose, although a pumping station might be required if the Commission failed to acquire a right of way-over land owned by others, which it had the power to do by condemnation. Two of the definitions which Webster’s New International Dictionary (2d ed. 1957) gives for “available” are: “Such as one may avail oneself of; capable of being used! to accomplish a purpose; usable; as, an available excuse” and “At disposal; accessible or attainable; obtainable; as,, tickets available on that day.” There is a clear connotation of activity, not passivity, on the part of a promisor who conditions his performance on something’s being-available.

If a person obligates himself to do something,, say, when tickets for a certain theatrical performance become available, who would doubt that an announcement, that the tickets are on sale is the event that requires the. promisor to act? The obligee is not required to go to the* box office, pay for the tickets and deliver them to the;