Acme Bldg. Co. v. Mitchell

• Decision Date: 13 December 1916
• Docket Number: 12.
• Citation: Acme Bldg. Co. v. Mitchell, 129 Md. 406, 99 A. 545 (Md. 1916)
• Parties: ACME BLDG. CO. v. MITCHELL.
• Court: Maryland Court of Appeals

99 A. 545

129 Md. 406

ACME BLDG. CO. v. MITCHELL.

No. 12.

Court of Appeals of Maryland

December 13, 1916

Appeal from Circuit Court of Baltimore City; John J. Dobler, Judge.

"To be officially reported."

Suit by the Acme Building Company against Joseph B. Mitchell.From a decree for defendant, plaintiff appeals.Decree affirmed.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, URNERSTOCKBRIDGE, and CONSTABLE, JJ.

David Ash, of Baltimore, for appellant.

Edwin W. Wells, of Baltimore, for appellee.

URNER J.

By an agreement in writing under seal, dated April 20, 1915, the appellee sold to the appellant company, for the sum of $35,000, a tract of land containing about seven acres, in the suburbs of Baltimore.The land was laid off in building lots which were described on a plat attached to the agreement.A deposit of $150 on account of the purchase was made at the time of the sale.It was stipulated that the further sum of $2,350 should be paid when the title was transferred, and that settlement should be made within 40 days from the date of the contract.There was a provision that the cash deposit and the second sum to be paid the vendor, aggregating $2,500 should be applied to the partial payment of a mortgage for $23,000, to which the property was subject and which the vendee covenanted to assume, and that ten of the building lots should thereupon be released from the lien of the mortgage, in pursuance of a contemporaneous agreement between the vendor and the mortgagees to that effect.The assumption of the mortgage by the vendee was to be treated as a payment to that extent of the purchase price of the property.The balance of the price, amounting to $12,000 was agreed to be secured by a second mortgage on the land and to be paid, without interest, in 3 1/2 years from the date of the conveyance.In the agreement made by the first mortgagees with the vendor, in contemplation of the sale, it was provided that building lots, to the number of ten or more at a time, should be released from the lien of the mortgage upon payments being made by the vendee at the rate of $250 for each lot thus redeemed.A covenant in the contract of sale obligated the purchaser, within one year after the transfer of the property, to pay $11,000 on the first mortgage, including the $2,500 paid to the vendor and by him applied to that lien, and during the second year after the sale to make payments to the amount of $11,500 on the same indebtedness.After the satisfaction of the first mortgage, the vendee company was authorized by the contract to procure releases of lots from the second mortgage by the payment of $170 per lot to the holder of that security.The settlement for which the contract of sale provided was not made or proffered by the vendee within the 40-day period therein prescribed.The vendor, through his attorney, had been urging prompt compliance with the terms of sale, but the vendee was not ready to comply at the expiration of the time agreed upon for that purpose.About ten days later a proposal was made by the vendee's representative that a day be named for the settlement, but in the meantime, after further unsuccessful efforts to have the matter closed, the vendor had been engaged in negotiations which resulted shortly afterwards in a sale of the property to another purchaser at the same price.The pending suit was brought by the first vendee to enforce the specific performance of the agreement of sale by the vendor, and the sole question involved is whether the limitation of time for the completion of the transaction was of the essence of the contract.

There is no dispute as to the principles of law applicable to a case of this character.A stipulation as to the time of payment of the purchase price is ordinarily not regarded as imposing a condition which requires strict and punctual performance in order to entitle the vendee to have the sale consummated.The general rule is that time is not of the essence of such a contract, unless a contrary purpose is disclosed by its terms or is indicated by the circumstances and object of its...