Chapman v. Thomas

• Decision Date: 05 November 1956
• Docket Number: No. 3,3
• Citation: 211 Md. 102,126 A.2d 579
• Parties: Ralph CHAPMAN et ux. v. William R. THOMAS, III.
• Court: Maryland Court of Appeals

Page 102

211 Md. 102

126 A.2d 579

Ralph CHAPMAN et ux. v. William R. THOMAS, III.

No. 3.

Court of Appeals of Maryland.

Nov. 5, 1956.

Earl J. Lombard, Washington, D. C. (William A. Gallagher, Forest Gordon, and Lombard & McClure, Washington, D. C., on the brief), for appellants.

William R. Thomas, III, Silver Spring, on the brief, for appellee.

Before BRUNE, C. J., COLLINS, WILLIAM L. HENDERSON and HAMMOND, JJ., and GEORGE HENDERSON, Special Judge.

HAMMOND, Judge.

The appeal is by the sellers in a contract for the sale of two building lots from a decree for specific performance granted the purchaser. On June 21, 1954, by written contract, Ralph Chapman and Katheryn D. Chapman, his wife, sold, and William R. Thomas, III, purchased lots 11 and 12 of block 103, Garrett Park, Montgomery County, at a price approximately $1,000 less than the original asking price. The contract provided that within thirty days from its date 'or as soon thereafter as a report on the title can be secured if promptly ordered', settlement was to be made. Neither expressly nor by implication was time made of the essence of the contract. Thomas, the purchaser, immediately ordered a title search, a survey and plans for the erection of his house. He obtained from the Veterans Administration a certificate of reasonable value in preparation for the securing of a loan to finance the building of the house, and within a few days of the date of the contract had deposited in bank substantially more than the amount of the purchase price in preparation for settlement. About three weeks after the contract had been signed, the title company advised Thomas that the property had been sold at tax sale for nonpayment of 1953 taxes. Just before he heard this news, the surveyor had told him that a preliminary survey disclosed a pieshaped encroachment or overlap, ten feet at the widest point, of lots 14 and 15 on lot 12. He learned that the owners of lots 14 and 15 claimed part of lot 12 under a previous survey. The title company advised Thomas that it could not guarantee the title without an exception and that it was unlikely that any lender would make a construction loan until the matter was cleared up. Thomas said also that his plans called for use of the full eighty-one feet of frontage and that the encroachment cut this down by ten feet, and made his plans unusable. He testified that he visited the Chapmans and advised them of the overlap and was told that they would take whatever steps were necessary to clear up the matter. He said also that a few days later he saw Mrs. Chapman again and told her about the taxes and was assured that they would be paid, and at that time was again told that the overlap would be cleared up. His further testimony was that he waited until July 30 or 31 and, having heard nothing from the Chapmans, went to their home to see if they would be willing to pay half of the cost of an additional survey which was said to be necessary. Mrs. Chapman then told him that she would take no action whatever to clear up the overlap but would be willing to take back title to the lots and cancel the contract. He told her that this was not acceptable and that he would not cancel. On August 5 or 6, after his additional survey was finished, Thomas arranged a tentative settlement date with Mrs. Chapman for August 16 and notified the title company. On either August 15 or 16, he received a call from Mrs. Chapman, saying that they could not settle on that date because Mr. Chapman, who works for the American Legion, was busy preparing for a convention to be held on August 30. There was further testimony to the effect that a few days later Thomas called Mrs. Chapman again and was told that her husband wanted to examine the deed, that the deed was, sent, that a lawyer employed by the Chapmans requested a change in the deed, and that the change was made and the deed returned to the lawyer. On September 4, when Thomas again called, seeking to settle, Mrs. Chapman told him that they would not go though with the contract. Four days later, he received a letter from Mrs. Chapman advising him that the thirty day settlement period had expired and that the contract was no longer valid. Enclosed was the check for the amount of his deposit. Thomas returned the check by registered mail and requested the title company to arrange settlement on September 15. The title company sent a registered letter to the Chapmans, advising them of the settlement date. Both registered letters were returned unclaimed. The Chapmans did not appear on the settlement date although their lawyer had been notified by the title company by regular mail when it would be held. Thomas was present, prepared to go through with the settlement and, in fact, tendered the settlement officer the balance of the purchase price called for by the contract.

Mrs. Chapman denied much of that to which Thomas had testified. Her version of what occurred was that she considered the contract ended as of July 30 or 31 and that she made no date to settle on August 16. The Chancellor found, justifiably we think, that her testimony was not convincing, that the testimony of Thomas was convincing and that in much of it he was corroborated by Mr. Chapman.

We find the Chancellor to have been right in decreeing specific performance. While its granting or withholding lies in the sound discretion of the court, 'This discretion is not, however, arbitrary; and where the contract is, in its nature and circumstances, unobjectionable--or, as it is sometimes stated, fair, reasonable and certain in all its terms--it is as much a matter of course for a court of equity to decree specific performance of it as it is for a court of law to award damages for its breach.' Glendale Corp. v. Crawford, 207 Md. 148, 154, 114 A.2d 33, 35, and cases cited.

The contract here answers the description of one justifying specific performance. The appellants' argument to the contrary, which we find untenable, is that Thomas did not show himself ready and eager to perform, and was in default for not settling within thirty days. Whether time is or is not of the essence in a contract for the sale of real estate, a purchaser who seeks specific performance has two primary obligations. First he must seek relief with due diligence and show that under all the circumstances he was "'ready, desirous, prompt, and eager"', as an early English case, quoted with approval in Doering v....