Bank v. Hurst's Estate

• Decision Date: 12 December 1946
• Docket Number: 27.
• Parties: BANK v. HURST'S ESTATE et al.
• Court: Maryland Court of Appeals

50 A.2d 133

187 Md. 333

BANK v. HURST'S ESTATE et al.

No. 27.

Court of Appeals of Maryland

December 12, 1946

Appeal from Circuit Court No. 2 of Baltimore City; Michael J Manley, Judge.

Suit by Michael Bank against John J. Hurst Estate and Cityco Realty Company of Baltimore City for specific performance of an option to a tenant to purchase leasehold property. From a decree dismissing the bill, the plaintiff appeals.

Decree affirmed.

Isidor Roman, of Baltimore, for appellant.

Lawrence Perin, of Baltimore (Semmes, Bowen & Semmes and Bradley T. J Mettee, Jr. all of Baltimore, on the brief), for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

MARKELL Judge.

This is an appeal by the plaintiff from a decree dismissing a bill for specific performance of an option to a tenant to purchase leasehold property, No. 3502 Cotwood Place, in Baltimore.

In 1932 the property was leased to plaintiff by defendant Cityco Realty Company (appellee), agent for defendant John J Hurst Estate (appellee) at $35 a month. After an increase in rent, plaintiff in June, 1942 was paying $37.50 a month.

By an agreement under seal dated July 15, 1942 between Cityco, agent, and plaintiff, Cityco let to plaintiff for two years, beginning July 20, 1942, the property in question, subject to a $78 ground rent at $12 per week payable in advance. The agreement gave plaintiff the right at any time during the tenancy to purchase the property. In case of such purchase plaintiff was, in the settlement, to be charged with $3300 purchase money, $200 having been paid for the option, and with interest on $3300 and all expenses of the property, ground rent, water rent, taxes, insurance and repairs from July 15, 1942 to date of settlement and to be credited with all rent paid by him up to the time of settlement and upon payment of the difference between the debits and credits, was to be entitled to a conveyance. By a contemporaneous letter from Cityco to plaintiff it was agreed that 'if at the expiration of the two years * * * it is impossible to obtain a Building Association mortgage to take care of the balance that you own on the property, we will extend the above referred to agreement until such time as a Building Association may be obtained.'

On December 28, 1945 plaintiff filed his bill of complaint, with the contract of July 15, 1942, as an exhibit, alleging the making of the 'option purchase agreement', that 'on several occasions' during the term of the agreement plaintiff made demand upon defendants to carry out the terms of the agreement, which defendants failed and refused to do, that subsequently Cityco was in frequent communication with plaintiff and 'continued to assure the plaintiff that they were making efforts to secure a mortgage upon said property' for $3300, 'as required by the terms of said option purchase agreement in order to carry out the same', and to that end sent numerous representatives of building and loan associations to inspect and examine the property for the purpose of arranging such loan, that on December 10, 1945 defendants, 'instead of complying with the terms of said option purchase agreement and promises thereunder continually made to the plaintiff,' advertised the property for sale. The bill prayed (1) that defendants 'be required to specifically perform their agreement' with plaintiff and to transfer the property to plaintiff for $3500. and 'to provide a purchase money mortgage of $3300 in connection with said transfer of said property', (2) that defendants be enjoined from advertising the property for sale or doing anything to dispose of it other than to plaintiff, and (3) general relief.

The Hurst estate answered that it had sold the property to Cityco and no longer had any interest in it. Cityco answered that plaintiff had breached the agreement by failing since December 14, 1942, to pay $12 a week and paying only $37.50 a month and before breach had never made demand upon it to carry out the agreement, and that the agreement did not require defendant to secure any mortgage on the property but defendant gratuitously made efforts to secure a mortgage for $3300 and requested representatives of building and loan associations to inspect and examine the property for this purpose but they were unwilling to make plaintiff a loan as great as $3300 on the property, and that the entire purpose and plan of the agreement had been defendanted by plaintiff by failing to make the payments of $12 a week called for by the agreement, by which plaintiff would have substantially reduced the unpaid purchase price of $3300 and would have been enable to obtain a building association mortgage for the...