Triton Realty Co. v. Frieman

Collins, J., delivered the opinion of the Court. This is an appeal by Triton Realty Company, appellant, from a decree dismissing its bill of complaint against Morris Frieman and Marie Frieman, his wife, appellees, for specific performance of a contract for the sale of real estate. On July 7, 1955, the appellees entered into an agreement of sale with the appellant by which the appellees agreed to sell and the appellant agreed to buy certain real estate in Baltimore City, subject to a ground rent of $90.00, for the price of $9,200.00, $500.00 of which amount having been paid prior to the signing of the contract. The balance of the purchase money was to be paid in cash “at time of settlement which shall take place on or before (60) Sixty days from the date hereof, at which time possession of the entire premises shall be given. * * * AND upon payment as above provided of the unpaid purchase money, a deed for the property containing covenants of special warranty and further assurance shall be executed at the Buyer’s expense by the Seller, which shall convey the property to the Buyer.” The contract further provided: “This Contract contains the final and entire Agreement between the parties hereto, and neither they nor their Agents shall be bound by any terms, conditions or representations not herein written; time being of the essence of this Agreement.” The appellant did not tender the purchase price or notify the appellees that it was ready for settlement within sixty days from the date of the contract, nor did the appellees notify the appellant that they were ready for settlement on that date.

On September 23, 1955, eighteen days after the date for settlement set out in the contract, the appellees by their attorney notified the appellant by letter “* * * that inasmuch as the property has not been settled for within sixty days thereof as stipulated in the contract — time being of the ²⁵⁵ essence of the contract — they regard said contract as of no further effect and will retain the deposit of $500.00, the earnest money paid by you, for their damages.” On September 29, 1955, the appellees by their attorney wrote the appellant another letter, supplementing the one of September 23rd, which stated that despite the fact that the appellees had the right to forfeit the $500.00 payment, they nevertheless felt that they did not want to retain this sum. Enclosed was a check in the amount of $500.00 and the letter stated that this return was made so that the appellant would not suffer any loss by reason of its failure to settle for the property in accordance with the terms of the contract. On the same day, September 29, 1955, the appellees entered into a contract to sell the same property to other parties for $11,500.00. On October 5, 1955, the appellant filed a bill of complaint against the appellees for specific performance of the contract of July 7, 1955, aforesaid.

The chancellor, in dismissing that bill of complaint with costs, by decree said: “Gentlemen, I do not see how in the world I can grant you relief under the cases. If the specific performance had been in the reverse direction, that would be another thing, but the burden is on you to show that you were ready and you have not shown that you were ready.” From his decree dismissing the bill appellant appeals. The attorney for the appellant testified that he informed the attorney for the appellees on September 23rd when he received the letter of that date that appellant could settle any time appellees wanted it to do so. He had not notified appellees before that date that appellant was ready for settlement.

The lien sheets on the property were not ordered until September 14th and were dated September 16th. The appellant did not complete its title examination of the property until September 21st. Appellant was never notified that appellees were prepared to give possession of the premises. Mr. Morris Frieman, one of the appellees, testified that he was ready to deliver possession on the date required in the contract. ²⁵⁶ In a contract for the sale of land, when time is expressly-declared to be of the essence, a court of equity will ordinarily not grant specific performance where the purchaser has failed to make payment within the time specified in the contract.

Soehnlein v. Pumphrey, 183 Md. 334 , 37 A. 2d 843 . It was said by this Court in Tarses v. Miller Fruit & Produce Co., 155 Md. 448 , 142 A. 522 : “Here the parties agreed that the contract would be performed within sixty days and expressly stipulated that time was the essence of the contract. When, as in the appeal at bar, time is not inserted as a merely formal part of the contract but is specifically and explicitly declared to be the essence of the contract, the court will not lend its aid to enforce specifically the contract regardless of the limitation of time. Miller’s Equity Proc., sec. 663; Fry on Specific Performance (3rd ed.), secs. 1075, 1077, 1090; 2 Story’s Eq.

Juris. (14th ed.), secs. 1064, 1059; 4 Pomeroy’s Eq. Jur. (4th ed.), sec. 1408; Coleman v. Applegarth, 68 Md. 21, 27, 28 ; Derrett v. Bowman, 61 Md. 526, 528 ; Acme Building Co. v. Mitchell, 129 Md. 406, 411 .” At the time of the signing of the contract on July 7, 1955, the appellees had purchased a new home in Baltimore which was “being finished”.

At the time of the signing of the contract one of the appellees, Morris Frieman, told the appellant that they did not know “how long it will be before the house is finished.” The appellant admits that the above quoted statement by the appellee, Morris Frieman, being parol evidence was not admissible to change the terms of the contract. Markoff v. Kreiner, 180 Md. 150, 154, 155 , 23 A. 2d 19 , and cases there cited. It claims, however, that that statement constituted a waiver by the appellees of settlement as specified in the contract. With that contention we do not agree.

Of course, as stated by Dean Roscoe Pound in The Progress of the Law, 33 Harvard Law Review, page 952, and relied on by the appellant here, where before time for performance vendor signifies his intention not to insist on timely or exact performance and the purchaser in reliance thereon acts accordingly, the principle of equitable estoppel ²⁵⁷ is sufficient to preclude insistence upon the condition to the injury of the purchaser. We do not have that situation here. The appellant relies strongly on the case of Paralka v. Grummet, 282 Pa. 235 , 127 A. 619 . Flowever, in that case the sellers, as defendants, conceded their inability to give possession at the time required in the contract.

To constitute a waiver by a party of a contract, such party must be estopped by his own conduct or the inequity of his position. Gibula v. Sause, 173 Md. 87 , 194 A. 826 ; Vincent v. Palmer, 179 Md. 365 , 19 A. 2d 183 ; Harris v. Kirshner, 194 Md. 139, 147 , 70 A. 2d 47 ; Great United Realty Co. v. Lewis, 203 Md. 442, 450 , 101 A. 2d 881 ; Talbert v. Seek, 210 Md. 34 , 122 A. 2d 469 . Equitable estoppel, as defined in Pomeroy’s Equity Jurisprudence, Vol. 2, Sec. 804: “* * * is the effect of the voluntary conduct of a party whereby he is absolutely precluded both at law and in equity from asserting rights, which might perhaps have otherwise existed, either of property, of contract or of remedy, as against another person who has in good faith relied upon such conduct and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, of contract or of remedy.” The mere fact that one of the appellees told the appellant at the time the contract was signed that he did not know when the new house would be completed was not a statement by him that settlement was not to be made on the date specified in the contract. Very often property is sold and the sellers contemplate moving into a new home.

If the new home is not completed when settlement is to be made and possession given of the old property, arrangements are made to move