Green Properties, Inc. v. Livingston, 72
| Decision Date | 11 December 1962 |
| Docket Number | No. 72,72 |
| Citation | 230 Md. 193,186 A.2d 475 |
| Parties | GREEN PROPERTIES, INC. v. Vernon L. LIVINGSTON and Katherine E. Livingston. |
| Court | Maryland Court of Appeals |
Henry A. Babcock, Hyattsville, for appellant.
Hamilton P.Fox, Jr., Salisbury, for appellees.
Before BRUNE, C. J., and HENDERSON, HAMMOND, HORNEY and SYBERT, JJ.
This is the second time that this case has come before us. The first appeal was from a judgment for costs for the defendant, Green Properties, Inc. (then appellee, now appellant), entered after the trial court had sustained a demurrer to the declaration, without leave to amend. This court reversed the judgment. Livingston v. Green Properties, Inc., 222 Md. 354, 160 A.2d 594. Following remand the plaintiffs, the Livingstons, recovered a judgment for $10,176.92, from which the defendant appeals.
The contract upon which this suit was based is summarized in the second paragraph of Judge Henderson's majority opinion on the first appeal. Its essential provisions, for present purposes, were: (i) an agreement on the part of the vendors, the Livingstons, to transfer a piece of property improved by a restaurant to the purchaser, Green Properties, Inc., 'subject to the debts, mortgages, judgments or claims' of seventeen parties, whose names, together with the approximate amounts due them respectively, were set out; and (ii) agreements by the purchaser to pay taxes and insurance and to 'assume the liabilities of [the] Vendors to the' enumerated creditors and to 'save [the] Vendors harmless from any claim or demand upon them by reason of the said liability or indebtedness including accrued interest and court costs.' The contract stated that the amounts shown were not the exact balances, due but the vendors agreed that the total indebtedness owed by them on the property would not exceed the total of the amounts shown and further agreed to pay or procure a waiver of any other claims which might be or become liens thereon. The contract recited a nominal consideration of $1.00. It is evident that the actual consideration for the transfer by the vendors was the obligation of the purchaser to pay the taxes and insurance and the mortgage, the mechanics' liens and the judgments or claims set forth in the contract.
We think that our decision on the first appeal is determinative against the purchaser on the proposition that its obligations under the contract became fixed when the contract was executed, at which time the vendors' beneficial interest in the property passed to the purchaser.
The appellant claims that there is a discrepancy between allegations and proof with regard to the date of the execution of the contract, that proceedings to foreclose the mortgage (which was the first of the seventeen enumerated claims) had been instituted before the appellant executed the contract, and that the vendors were not ready, able and willing to convey the property in accordance with the terms of the contract. The discrepancy in date, if any, is slight. The declaration stated it as 'on or about' October 14, 1957. The proof showed it to have been October 15, or at the latest October 16, 1957. The foreclosure suit, it is true, was instituted on October 15th. The existence of the mortgage was, however, plainly known to the purchaser--indeed the purchaser's agreement to assume it and save the vendors harmless was the largest single item making up the consideration for the transfer--and the proof showed that the vendors, through their attorney, offered to pay the court costs when the assignment of the mortgage and the institution of the foreclosure proceedings became known. The previous opinion of this court made it clear that the contract contemplated an immediate transfer of the beneficial interest in the property and that the purchaser's own failure to discharge its obligation to assume the mortgage and to save the vendors harmless with respect to it prevented the vendors from performing or tendering performance, and that the vendors were, therefore, excused from the necessity of doing so.
Our prior opinion clearly construed the contract as imposing an immediate obligation on the purchaser as soon as it was executed to pay the mortgage, not merely to indemnify the mortgagors against any amount which they might be required to pay. We thus find the purchaser's contention that its obligation was merely a contract of indemnity untenable. Rosenthal v. Heft, 155 Md. 410, 142 A. 598.
The only other questions pertain to the damages awarded. The amount of the judgment was made up of these elements:
The unpaid balance of the claims
enumerated in the contract and
assumed by the purchaser $6,950.79
Interest thereon
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