Bond v. Weller

• Decision Date: 22 March 1922
• Docket Number: 50.
• Citation: Bond v. Weller, 141 Md. 8, 118 A. 142 (Md. 1922)
• Parties: BOND v. WELLER.
• Court: Maryland Court of Appeals

118 A. 142

141 Md. 8

BOND v. WELLER.

No. 50.

Court of Appeals of Maryland

March 22, 1922

Appeal from Circuit CourtNo. 2 of Baltimore City; H. Arthur Stump Judge.

"To be officially reported.

Suit for specific performance by Thomas R. Bond against Edward F Weller.From a decree dismissing billplaintiff appeals.Affirmed.

Walter C. Mylander, of Baltimore, for appellant.

William H. Surratt, of Baltimore, for appellee.

THOMAS J.

On the 5th of August, 1920, the appellant and appellee entered into the following contract:

"This agreement, made this fifth day of August (1920) nineteen hundred and twenty, between Thomas R. Bond of the first part and Edward F. Weller of the second part.

Witnesseth, that the said party of the first part doth hereby bargain and sell unto the said party of the second part, and the latter doth hereby purchase from the former the following described property, situate and lying in Baltimore City Bungalow, six rooms and bath, Green Spring avenue, between Taney road and Key avenue.LotNo. 763 as shown on the plat.

At and for the price of seven thousand dollars ($7,000.00), of which five hundred dollars ($500.00), have been paid prior to the signing hereof and the balance is to be paid as follows: $500.00 on or before September 1, 1920, balance to be paid $700.00 a year in monthly installments of $58.34 each month and interest.A building association loan to be secured by said Weller and the balance to be carried by said Bond on a second mortgage with interest.Cement walk from porch to front of lot and to side porch to be laid by Bond.

And upon payment as above of the unpaid purchase money, a deed for the property shall be executed at the vendee's expense by the vendor, which shall convey the property by a good and merchantable title to the vendee.

Taxes, _____, to be paid or allowed for by the vendor to August 18th, nineteen hundred and twenty.

Witness our hands and seals.

Thos. R. Bond.[Seal.]

Edward F. Weller.[Seal.]

Test:

E. L. Willis."

The appellee paid $500 at the time the contract was executed, and also paid the $500 due under the terms of the contract on the 1st of September, 1920.He took possession of the property shortly before he made the second payment, and remained in possession until about July, 1921, but he never made any further payment on account of the purchase price, and gave as his reason for failing to do so that neither he nor his counsel had been able to secure a building association mortgage or loan on the property.Learning that the appellee was about to "move out" of the property, the appellant on the 8th of July, 1921, filed the bill of complaint in this case for specific performance of the contract.The appellee answered the bill, admitting the execution of the contract, but denying the right of the appellant to the relief sought on the ground, among others, that the contract was too indefinite and uncertain to be specifically enforced, and this appeal is from the decree of the court below dismissing the bill.

It is said in Miller's Equity, § 683:

"That the contract sought to be specifically enforced must be definite and certain in its terms, and free from all ambiguity, has been established by many cases.It is indeed said that the contract must be free from all shade or color of ambiguity."

This statement of one of the essential features of enforceable contracts has been repeated with equal emphasis in many of the later decisions of this court.Horner v. Woodland,88 Md. 511, 41 A. 1079;Dixon v. Dixon,92 Md. 432, 48 A. 152;Ward v. Newbold,115 Md. 689, 81 A. 793, Ann. Cas. 1913A, 919;King v. Kaiser,126 Md. 213, 94 A. 780;Phoenix Pad Mfg. Co. v. Roth,127 Md. 540, 96 A. 762;Thompson v. Thomas & Thompson Co.,132 Md. 483, 104 A. 49;Texas Co. v. U.S. Asphalt Refining Co. and Chesapeake & Curtis Bay R. Co.(Md.)117 A. 879, No. 106, October Term, 1921.In Ward v. Newbold, supra, Judge Pearce said:

"No rule is better established than that which enumerates 'certainty in all its parts' as one of the essentials of every agreement to merit the interposition of a court of equity, and that 'if any of these essentials are wanting, courts of equity will not decree a specific performance."'

Turning to the contract in this case, we find that after stating the price to be paid for the property, and specifying that it was to be paid in certain installments, it then provides that "a building association loan" is to be secured by the vendee, and that the balance is to be "carried" by the vendor "on a second mortgage with interest," and that "upon payment as above of the unpaid purchase money a deed for the property shall be executed at the vendee's expense by the vendor, which shall convey the property by a good and merchantable title to the vendee."Here there is a distinct undertaking on the part of the vendee to pay part of the purchase money by a loan to be obtained by him from a building association, and a like undertaking on the part of the vendor to accept a second mortgage of the property as security for the balance of the purchase money, but neither the amount of the loan to be secured by the vendee, nor the amount of the second mortgage to be accepted by the vendor, is stated in the contract.The contract is therefore...