Silver Holding Corp. v. Sheeler

Brune, C. J., delivered the opinion of the Court. The complainant appeals from a decree of the Circuit Court for Baltimore County dismissing its bill insofar as it sought specific performance of a contract for the sale of real estate. (It required the return of the deposit made under the contract.) The contract was executed October 9, 1959, and was in a customary form under which time was of the essence. The complainant, Silver Holding Corporation, was the purchaser and the respondent, Dora C. Sheeler, and her husband were the vendors.

The property in question was their home. The total purchase price was $18,000.00, of which $1,000.00 was to be paid at the time of settlement and the balance was to be secured by an interest-bearing mortgage maturing three years thereafter, with right of prepayment. The only controversy on this appeal is over the Chancellor’s findings of fact that the purchaser had played fast and loose with the contract and had not been diligent in seeking its performance, and that there was no estoppel against the seller to prevent her from raising the defense of delay. (Cf.

Lissau v. Smith, 215 Md. 538 , 138 A. 2d 381 .) On these findings the Chancellor held that the vendee was not entitled to specific performance. He relied upon a number of cases, particularly Newman v. Johnson, 108 Md. 367 , 70 A. 116 , where an easement had been abandoned, but not released of record. In that case, even though time was not (as here) of the essence of the con ³⁷ tract, long delay after the settlement date specified in the contract, without election by the purchaser either to take the property subject to the easement or to cancel the contract was held a bar. The general rule is well established in this State that in order to be entitled to specific performance of a contract for the sale of real estate, the purchaser must be “ready, desirous, prompt and eager” to consummate the contract, whether or not time is of the essence thereunder.

See Doering v. Fields, 187 Md. 484, at 488-89 , 50 A. 2d 553 ; Garbis v. Weistock, 187 Md. 549 , 51 A. 2d 154 ; Vincenti v. Kammer, 189 Md. 523, 530 , 56 A. 2d 688 ; Triton Realty Co. v. Frieman, 210 Md. 252, 256 , 123 A. 2d 290 ; Chapman v. Thomas, 211 Md. 102, at 108 , 126 A. 2d 579 (rule recognized, not found applicable); and Miller, Equity Procedure, § 661. Where, as in the present case, time is declared to be of the essence of the contract, equity will not ordinarily grant specific performance where the party seeking that remedy has failed to perform or to act to enforce the contract within the time specified therein. Soehnlein v. Pumphrey, 183 Md. 334, 337 , 37 A. 2d 843 (rule stated, but not applicable; time was not made of the essence); Parses v. Miller Fruit & Produce Co., 155 Md. 448, at 453-55 , 142 A. 522 (unexcused delay by vendor); Budacz v. Fradkin, 146 Md. 400, at 407 , 126 A. 220 (rule stated, excusable delay on part of purchaser). Under some circumstances the party resisting specific performance may be estopped to set up the other party’s delay.

Lissau v. Smith, supra. Under the contract settlement was to be effected by April 9, 1960, and was set for that date. Several weeks prior thereto the respondent’s husband had died, and she was unwilling to attend the settlement without having her son with her. Due to some confusion or delay, she and Mr. Held, the real estate agent who had negotiated the sale, did not meet the son as planned, and the son went alone to the office of the title company where the settlement was to take place, arriving somewhat late.

The respondent did not get there at all, but Mr. Held telephoned some time after the hour fixed for the settlement and spoke to Mr. Harry Silver, president of the complainant corporation, at the title company’s office. With Mr. Silver at the ³⁸ time was Mr. Milton Schwaber, the principal for whom the complainant was acting. The purchaser had requested a title company report soon after signing the contract and was advised by the title company that the property was subject to a mortgage in the amount of $800.00, which had not been released of record. The title