Barnes v. Euster

• Citation: 240 Md. 603,214 A.2d 807
• Decision Date: 07 December 1965
• Docket Number: No. 44,44
• Parties: Francis F. BARNES v. Roger EUSTER et al.
• Court: Maryland Court of Appeals

Page 603

240 Md. 603

214 A.2d 807

Francis F. BARNES v. Roger EUSTER et al.

No. 44.

Court of Appeals of Maryland.

Dec. 7, 1965.

M. J. Cuff, Hyattsville, for appellant.

Frank W. Wilson, Silver Spring, (Wheeler, Moore & Korpeck, Silver Spring, on the brief), for appellees.

Before PRESCOTT, C. J., and HAMMOND, MARBURY, BARNES and McWILLIAMS, JJ.

HAMMOND, Judge.

This case would seem to have become moot by the time it reached us for decision. The appellant's (the buyer's) amended bill, filed in May 1963, asking for specific performance of a contract dated August 7, 1959, for the sale to him by the appellees for cash of a tract of real estate in Montgomery County was dismissed on demurrer without leave to amend because the chancellor construed a provision of the contract that 'this sale [is] subject to the obtaining of necessary zoning for the erection of general offices for use of doctors within the next zoning application term' as a condition precedent which had not been met. We were told at the argument that after the dismissal the appellees had sold the property to another buyer, despite the fact that an appeal to this Court had been noted and a supersedeas bond filed, as well as that the lawyers for the second purchaser, who had certified the title, paid the appellant a substantial sum in return for his release of all claims to or against the property.

Although he now concedes that his right to specific performance is gone, appellant bravely asserts the right to damages from the appellees for their breach of contract in selling the property to another although no allegation as to, or claims for, damages were made in the amended bill.

The Montgomery County Code provides that applications for rezoning generally may be filed only during each of two specified months of the year, six months apart, and the parties agree that the phrase in the contract 'next zoning application term' meant the six months' period following the first day of the month in which zoning applications could be filed next ensuing after the signing of the contract. The appellant timely filed his application for rezoning on December 30, 1959, but the District Council had not acted on the application by the end of the current 'application term' and on October 10, 1961, the sellers notified the appellant in writing that the contract 'has been terminated,' and that the ten per cent deposit was being returned. The appellant returned the deposit and on February 9, 1962, filed a bill for a declaratory judgment that the contract remained in full force and effect because the District Council were still considering the zoning application. After a demurrer to this bill had been sustained, appellant on May 14, 1963, filed an amended bill for specific performance in which he alleged that the District Council had denied the rezoning on March 19, 1963, that the sellers had repudiated the contract on October 10, 1961, and, for the first time, expressed a willingness to waive the condition as to the obtention of rezoning, saying that despite the Council's decision and his appeal therefrom, '* * * the plaintiff waives the condition * * * relative to acquiring the necessary zoning * * *' (emphasis added), and stood ready to take the property as it was.

Although the contract did not expressly make time of the essence, it may well be, as appellees contend, that by reason of the condition as to rezoning, the contract was like a unilateral contract, such as an option, in which the law makes time of the essence (as in Clarke v. Lacy, 213 Md. 482, 132 A.2d 478, and Shea v. Marton, 214 Md. 539, 136 A.2d 247), and that time ran out with the expiration of the then current 'zoning application term,' and the contract then ended, as in Metz v. Heflin, 235 Md. 550, 201 A.2d 802, without further obligation on either party.

Even if Clarke and Shea do not control the decision here, the appellant cannot prevail. For the purposes of decision, it may be assumed that '* * * the equity court could take cognizance of such a claim in the circumstances of this case,' as Chief Judge Brune said for the Court in Allview Acres v. Howard, 229 Md. 238, 247, 182 A.2d 793, 798. In that case the contract was conditioned, as the Court saw it, upon reasonable efforts by the seller to have the property rezoned to a more intensive use. The efforts were made but failed. The bill of the seller sought to have the contract declared void, and the buyer cross-claimed for specific performance or for a sum mentioned 'as liquidated damages' on the ground the efforts had not been reasonable.

If in the case before us the equity court could take cognizance of a claim for damages--and none were alleged or specifically claimed in the amended bill for specific performance--it could award damages only if the sellers had breached an obligation to the buyer....