Metzler v. Iacone

• Decision Date: 30 September 1947
• Docket Number: No. 543.,543.
• Citation: 55 A.2d 81
• Parties: METZLER et al. v. IACONE et al.
• Court: D.C. Court of Appeals

55 A.2d 81

METZLER et al.

v.IACONE et al.

No. 543.

Municipal Court of Appeals for the District of Columbia.

Sept. 30, 1947.

Appeal from The Municipal Court for the District of Columbia, Civil Division.

Action by Amedeo C. Iacone and another against Cuvier A. Metzler, Gustave Broche and Lena Broche to recover a deposit on the purchase of real estate. Judgment for the plaintiffs and the defendants appeal.

Judgment affirmed as to the first named defendant and reversed as to the last two named defendants.

Harry L. Ryan, Jr., of Washington, D. C., for appellants.

M. M. Doyle, of Washington, D. C. (S. A. Mickler, of Washington, D. C., on the brief), for appellees.

Before CAYTON, Chief Judge, and HOOD and CLAGETT, Associate Judges.

CAYTON, Chief Judge.

This was an action to recover a $1,000 deposit on the purchase of real estate. The sales contract recited that the property was subject to no existing tenancy. It also contained the following provision: ‘Seller agrees to give possession at time of settlement. If seller shall fail so to do and occupies said property, seller shall become and be thereafter a tenant at sufferance of the purchaser, and hereby expressly waives all notice to quit provided by law.'

When the parties met for settlement at the title company it developed (or so the trial judge found on conflicting evidence) that the sellers were not prepared to surrender possession to the purchasers, and they asked for a 10-day delay. Purchasers refused to agree to any extension and left the title company office. Sellers declared the deposit forfeited on the ground that purchasers had breached their contract. The purchasers then brought this suit, naming as defendants Metzler, the broker, together with Mr. and Mrs. Broche, the owners. The trial judge found that on the day of settlement the defendant was not ready to surrender possession of the premises and requested a 10-day delay; that plaintiffs refused any extension and demanded possession as of that date; that at the time of settlement defendant did not tender possession by surrendering the key but turned the key over to the title company after the plaintiff had left, and also attempted to execute a deed after plaintiffs had left. He found that the contract had been breached by Broche and that plaintiffs were entitled to the return of their deposit. He ordered judgment against all defendants and all of them are here prosecuting this appeal.

1. Appellants say it was error to hold that they were unable to give possession on the date of settlement. The evidence was conflicting as to what was said and done at the title company and we cannot say that the trial judge was in error in accepting purchasers' version as against that of the sellers.

2. Appellants say that the trial court erred in holding that ‘possession at the time of purchase was requisite,’ and in holding that the purchasers were legally justified in refusing to complete the purchase, because of the vendors' failure to yield possession. Appellants contend that the provision in the contract calling for possession at time of settlement did not require them to yield more than constructive possession. To this we cannot agree. We hold that in the absence of a contrary intention expressed in the contract, or of some special relationship between the parties, actual possession must be yielded up at the time of making the deed. Here all the parties knew that the property was being bought for use as a residence and hence that time of delivery of possession was of the essence of the transaction. Failure to yield actual possession was a breach by the vendors and such breach is not mended or minimized by an offer of constructive possession. Generally supporting our view of the matter are American-Italian Building & Loan Ass'n of Elizabeth, N. J. v. Liotta et al., 117 N.J.L. 467, 189 A. 118, 108 A.L.R. 1346; Eisler v. Halperin, 89 N.J.L. 278, 98 A. 245; Stallard v. Stallard, 133 Kan. 512, 300 P. 1096; Callicott v. Horn, 161 Miss. 395, 135 So. 215, 137 So. 190; Browing v. Huff, 204 Ky. 13, 263 S.W. 661.

Appellants argue that even if a breach can be charged to them the contract gives the purchasers only one remedy: to accept title and sue for possession. We think otherwise. It is true that the contract...