Coleman v. Applegarth

• Decision Date: 31 October 1887
• Citation: 68 Md. 21,11 A. 285
• Parties: COLEMAN v. APPLEGARTH and another.
• Court: Maryland Court of Appeals

11 A. 285

68 Md. 21

COLEMAN

v. APPLEGARTH and another.

Court of Appeals of Maryland.

October Term, 1887.

Appeal from the circuit court of Baltimore city.

Richard Bernard, for appellant. Sebastian Brown and J. S. Soiecki, for appellees.

ALVEY, C. J. Coleman, the appellant, filed his bill against Applegarth and Bradley, the appellees, for a specific performance of what is alleged to be a contract made by Applegarth with Coleman for the sale of a lot of ground in the city of Baltimore. The contract upon which the application is made, and which is sought to be specifically enforced, reads thus: "For and in consideration of the sum of five dollars paid me, I do hereby give to Charles Coleman the option of purchasing my lot of ground, north-west corner, etc., assigned to me by Wright and McDermot by deed dated, etc., subject to the ground-rent therein mentioned, at and for the sum of $645 cash, at any time on or before the first day of November, 1886." It was dated the third of September, 1886, and signed by Applegarth alone.

The plaintiff, Coleman, did not exercise his option to purchase within the time specified in the contract, but he alleges in his bill that Applegarth, after making the contract of the third of September, 1886, and before the expiration of the time limited for the exercise of the option, verbally agreed with the plaintiff to extend the time for the exercise of such option to the first of December, 1886. It is further alleged that about the ninth of November, 1886, without notice to the plaintiff, Applegarth sold and assigned by deed the lot of ground to Bradley, for the consideration of $700; and that subsequently, but prior to the first of December, 1886, the plaintiff tendered to Applegarth in lawful money the sum of $645, and demanded a deed of assignment of the lot of ground, but which was refused. It is also charged that Bradley had notice of the optional right of the plaintiff at the time of taking the deed of assignment from Applegarth, and that such deed was made in fraud of the rights of the plaintiff under the contract of September 3, 1886. The relief prayed is that the deed to Bradley may be declared void, and that Applegarth may be decreed to convey the lot of ground to the plaintiff upon payment by the latter of the $645, and for general relief.

The defendants, both Applegarth and Bradley, by their answers, deny that there was any binding contract or optional right existing in regard to the sale of the lot, as between Applegarth and the plaintiff, at the time of the sale and transfer of the lot to Bradley, and the latter denies all notice of the alleged agreement for the extension of the time for the exercise of the option by the plaintiff; and both defendants rely upon the statute of frauds as a defense to the relief prayed. The plaintiff was examined as a witness in his own behalf, and he also called and examined both of the defendants as witnesses in support of the allegation of his bill. But without special reference to the proof taken, the questions that are decisive of the case may be determined upon the facts as alleged by the bill alone in connection with the contract exhibited as upon demurrer, such facts being considered in reference to the grounds of defense interposed by the defendants.

The contract set up is not one of sale and purchase, but simply for the option to purchase within a specified time, and for a given price. It was unilateral and binding upon one party only. There was no mutuality in it, and it was binding upon Applegarth only for the time stipulated for the exercise of the option. After the lapse of the time given, there was nothing to bind him to accept the price and convey the property; and the fact that this unilateral agreement was reduced to writing added nothing to give it force or operative effect beyond the time therein limited for the exercise of the option by the plaintiff. It is quite true, as contended by the plaintiff, that as a general proposition time is not deemed by courts of equity as being of the essence of contracts; and that in perfected contracts, ordinarily, the fact that the time for performance has passed will not be regarded as a reason for withholding specific execution. But while this is the general rule upon the subject, that general rule has well-defined exceptions, which are as constantly recognized as the general rule itself. If the parties have, as in this case, expressly treated time as of the essence of the...