Coopersmith v. Isherwood, 152

• Decision Date: 14 April 1959
• Docket Number: No. 152,152
• Citation: 219 Md. 455,150 A.2d 243
• Parties: Jack COOPERSMITH v. Arthur M. ISHERWOOD et ux.
• Court: Maryland Court of Appeals

Page 455

219 Md. 455

150 A.2d 243

Jack COOPERSMITH v. Arthur M. ISHERWOOD et ux.

No. 152.

Court of Appeals of Maryland.

April 14, 1959.

John P. Moore, Silver Spring (Moore & Linowes, Silver Spring, on the brief), for appellant.

James R. Miller, Sr., Rockville, for Ruth K. Isherwood (Miller & Miller, Rockville, on the brief), for appellee.

Before HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ., and THOMAS J. KEATING, Jr., Special Judge

THOMAS J. KEATING, Special Judge.

On July 29, 1958, the Circuit Court for Montgomery County entered its decree dismissing appellant's bill of complaint for specific performance of a written contract for the sale of certain real estate and granting summary judgment in favor of the appellees. Appellant contends that the chancellor erred in (1) granting summary relief to appellees (defendants below) because there was a genuine dispute as to material facts and (2) denying appellant's prayer for specific performance because the undisputed facts shown in the bill, answer and the affidavit filed by appellant in opposition to appellees' motion for summary judgment entitled him to the relief prayed.

On or about July 30, 1956, appellant, a real estate man and developer, as buyer, and the appellees, husband and wife, owners of a 41 acre tract of unimproved farm land in Montgomery County signed a written instrument purporting to be a contract of sale prepared on a printed form by another real estate broker (Ruppert). The instrument called for the sale of the tract to appellant for $30,000, of which $10,000 (including the $500 deposit) was to be paid in cash and $20,000 was to be secured by 'First Deed of Trust' on certain terms. The instrument also provided that the brokerage commissions on the transaction were to be paid to Ruppert by the purchaser. At the end of the printed form the draftsman, knowing of his client's intention to apply for rezoning, but apparently, so far as the record shows, without consultation with or instructions from any of the parties, inserted the following provision:

'It is further understood and agreed, That the purchaser shall at his expense, and as soon as possible after the execution of this contract apply for a rezoning for commercial purposes of a part of the above mentioned premises.

'In the event that this property is not rezoned to the satisfaction of the purchaser on or before January 1, 1957, then this contract may be declared null and void by either party and the deposit stated herein will be refunded to the purchaser.'

And, as so frequently happens under such circumstances, this inartificially drawn proviso brought the parties first to the Circuit Court and then here to settle their differences, arising from the following chain of events:

Appellant, about October 16, 1956, applied for rezoning of 3.87 acres of the 41 acre tract, having previously had it surveyed, and on or about December 28, 1956, appellant sent a letter to his agent, Ruppert, in Washington reading: 'This letter is notice that the contract of purchase dated 7-30-56 of the Isherwood property on Olney-Laytonsville Rd. and Muncaster Rd. will be exercised according to the provision that notice be given before January 31st, 1957. I therefore direct you to give such notice effective December 31st, 1956. Title will be ordered at the Realty Title Co., 1424 K St., N. W.' An examination of the contract fails to disclose any provision about giving notice before January 31, 1957, or any other date. On the same day (December 28, 1956) Ruppert delivered the above letter to appellees and at the same time advised them that the rezoning had not been obtained as of that date. It is significant to note here that the record is silent as to whether appellant disclosed to appellees his future intentions as to rezoning.

Between January 15, 1957, and February 26, 1957, appellant consulted zoning counsel and upon advice applied for permission to withdraw his application for rezoning of the 3.87 acre lot. Withdrawal privilege was granted on February 26, 1957, with prejudice. According to appellant's affidavit several times between January 15, 1957, and March 4, 1957, appellant 'asked the agent, Milton F. Ruppert, to consider certain modifications of the sales agreement * * *. The defendants declined to accept any of these suggestions, and insisted that the terms of the contract remain unchanged.'

Between February 1, 1957, and March 1, 1957, Ruppert had several conversations with Mrs. Isherwood (Mr. Isherwood being ill) relative to the title papers being prepared. He advised her on February 19, 1957, that settlement would be made on March 4, 1957. On each occasion she referred him to other people, who were either friends or advisors, as she was unfamiliar with such matters. One of these on March 1, 1957, advised Ruppert that he should see Mr. Miller, an attorney in Rockville, who was handling the matter for the appellees. Appellees did not appear for settlement and thereafter declined to settle; and on or about March 15, 1957, their counsel advised the appellant that, because of failure to rezone, the appellees would not perform. On March 22, 1957, he sent to appellant a check of Mrs. Isherwood's for refund of the $500 deposit which appellant refused to accept and returned, and he thereupon brought suit.

Before determining whether or not the alleged contract can be specifically enforced we must first construe the instrument itself. The general principle in the construction or interpretation of contracts that the intention of the parties must be gathered from the contents, phraseology, and words of the document itself, unless there is some ambiguity in its language, is too elementary to need citation of authority. Only when the language or words, used in their ordinary sense, are vague, doubtful or have two meanings, may extrinsic evidence be used to determine the intention of the parties.

Applying this principle to the instrument here involved we believe there is no ambiguity needing explanation. The language, either by itself or read in context, means simply what it says: 'In the event this property is not rezoned to the satisfaction of the purchaser on or before January 1, 1957, then this contract may be declared null and void by either party * * *.' While the rights and liabilities of the parties thereunder, being matters of law, may need some explanation because of the nature of the transaction and the facts which later developed, the intention of the parties on or about July 30, 1956, when they signed the instrument was clear. Each party reversed the right, without acquiescence or leave of the other party, to declare the contract null and void at any time after January 1, 1957, if by that time the property had not been rezoned to the satisfaction of the purchaser. While it is apparent that the extent and nature of the rezoning was to be satisfactory to the purchaser, the fact of its accomplishment was not, and if there should be no rezoning at all by January 1, 1957, either party could declare the contract null and void. Thus, no rezoning having been accomplished by that date, thereafter either of the parties could, within a reasonable time, have acted independently of the other party.

This is an executory contract, voidable at the option of either party. It was not absolutely void after January 1, 1957, because it...