Tarses v. Miller Fruit & Produce Co.

• Decision Date: 21 June 1928
• Docket Number: 40.
• Citation: Tarses v. Miller Fruit & Produce Co., 155 Md. 448, 142 A. 522 (Md. 1928)
• Parties: TARSES v. MILLER FRUIT & PRODUCE CO.
• Court: Maryland Court of Appeals

142 A. 522

155 Md. 448

TARSES v. MILLER FRUIT & PRODUCE CO.

No. 40.

Court of Appeals of Maryland

June 21, 1928

Appeal from Circuit CourtNo. 2 of Baltimore City; Joseph N. Ulman Judge.

Bill by Bores Tarses against the Miller Fruit & Produce Company.Decree of dismissal, and plaintiff appeals.Affirmed.

Argued before BOND, C.J., and URNER, OFFUTT, DIGGES, and PARKE, JJ.

Emanuel E. Ottenheimer and Louis J. Jira, both of Baltimore, for appellant.

Daniel Ellison, of Baltimore, for appellee.

PARKE J.

The original bill of complaint was filed in this case on October 24, 1927, and this appeal is from a decree sustaining a demurrer to an amended bill of complaint and dismissing the bill.The material allegations upon which the appellant relied for relief, but which the chancellor adjudged insufficient, will now be stated.On October 21, 1924, the appellant, Bores Tarses, agreed to sell, and the appellee the Miller Fruit & Produce Company, agreed to buy, three leasehold lots in Baltimore city for the sum of $9,200.A deposit of $500 was made upon the execution of the contract in accordance with the following provisions of the agreement of sale, which was in writing and under seal:

"Vendor agrees to take back a second mortgage of one thousand ($1,000.00) dollars for one year, which shall bear interest at 6% per annum, payable quarterly, at and for the price of ninety-two hundred dollars ($9,200.00) of which five hundred dollars ($500.00) have been paid prior to the signing hereof, and the balance to be paid as follows: Cash within sixty (60) days from above date.Time being of the essence of this contract."

The other terms of the contract do not bear on any of the questions raised, and so need not be detailed.

The bill of complaint averred that, although the time for the completion of the contract had long since expired, and although the vendor was and had always been ready, able, and willing to comply and to convey the property by a good and merchantable title, the vendee had delayed and evaded the performance of his obligations and had refused to pay the balance of the unpaid purchase money, accept a deed for the property, and execute the mortgage as in said contract set forth.These general allegations are followed by others which charge that the vendee refused to take title to the property sold because of alleged nonexistent objections to the title and that, after the vendor had offered the vendee a title insurance policy to protect it in the matter of the alleged defect, the vendee refused to accept the offer or to do anything further towards the fulfillment of its contract.The bill of complaint is not clearly drawn, and its language is vague and general, but the gravamen of the allegations is that the vendee refused to comply with the terms of sale, and "regarded" the deposit as "relinquished and forfeited for noncompliance" with its obligation, since it had abandoned its contention that the title to the property was defective, and that the vendee had thereby induced in the vendor the belief that the latter was entitled to retain the deposit as liquidated damages, and that, in consequence of this attitude of the vendee, the vendor did not file his bill for specific performance of the contract until shortly after the vendee had brought, "to the utter surprise" of the vendor, an action at law to recover the deposit on the theory that the vendee had always been ready, willing, and able to pay the purchase money, but the vendor had never been able to carry out his contract by conveying a good and merchantable title.

The vendor then professes himself ready, able, and willing to release the deposit money and to reimburse the vendee for other reasonable charges and expenses in the event the title to said property should be held not good and marketable, and concludes with a prayer that the vendee may be enjoined from proceeding with its action at law, and that the contract may be specifically enforced, and that he may have general relief.

The chancellor was right in sustaining the demurrer and dismissing the amended bill of complaint, since the contract was incomplete and uncertain in material matters, and was abandoned by the parties.

1.However inartificially expressed, the writing is sufficiently clear that the purchase price for the property sold was $9,200, with a payment of $500 received thereon, and the residue payable in cash within sixty days from the date of the contract, with the right of the vendee to have accepted as part of this cash payment a second mortgage of $1,000, payable to the vendor in one year, and bearing interest in quarterly installments at the rate of 6 per centum per annum.But the contract leaves undefined the term: "Vendor agrees to take back a second mortgage of one thousand ($1,000) dollars for one year."The parties leave incomplete their understanding as to whether the second mortgage is to lie upon the premises described in the contract or upon some other.If at the time of the contract the vendee owned other real or leasehold property, either inference is consistent with the language used.Sanderson v. Stockdale,11 Md. 563, 571, 572.Assuming that the purchaser had no other property than that bought, or that the words, "take back a second mortgage," refer to the property which was the subject-matter of the contract and be given that effect, a further difficulty persists.

If either of these assumptions be made, and if the contract be read literally, the vendor was bound to accept as part of his cash payment a second mortgage on the premises sold for $1,000, no matter the amount of the first mortgage lien nor how the purchaser applied its proceeds.This construction would mean that, if the buyer should obtain a loan on the property for the full amount of, or even more than, the contract price, and should tender the vendor a second mortgage lien for $1,000 on the property sold and executed according to the tenor of the contract and the residue in money, the vendee would have complied with the terms of sale, despite the fact that he would have left in his hands in cash the sum of $1,000 or more as the residue from his first mortgage lien, because the contracting parties neither limited the amount of the first mortgage lien nor required that all the funds thereby coming into his hands should be dedicated, in whole or in part, to the payment of the purchase price.In other words, the contract left the amount of the first mortgage lien and the value of the security afforded by the second mortgage lien wholly within the will of the vendee and his ability to borrow.So the vendee, electing to avail himself of the right to tender the second mortgage as a cash payment might strictly comply with his agreement, and yet his performance would be illusory to the extent of $1,000.This possibility within the letter of the contract is a result which the parties never contemplated, and is plainly and reasonably the consequence of the contract not expressing the real agreement of the parties because of its incompleteness.

The contract thus appears to be incomplete and uncertain in material matters.The failure of the contract to indicate upon what property the...