Copp v. de Ronceray

Briscoe, J., delivered the opinion of the Court. Miss deRonceray, the appellee, brought suit in the Circuit Court for Montgomery County against Henry N. Copp, appellant, and recovered a judgment for $800.31, with interest from March 22, 1895. The suit was instituted upon a written contract under seal, for the conditional sale of certain' lots in “West End Park,” near Rockville, in Montgomery County. There is but a single question raised by the pleadings in the cause, and it arises upon the following clause of the contract: “ It is further agreed by said Henry N. Copp to refund the purchase money paid prior to June 1st, 1894, — 38 — on the following terms and conditionThe lot purchaser must have complied strictly with the terms of sale herein prescribed, up to and including the month of May, eighteen hundred and ninety-four, and paid each and every instalment due to said month inclusive, personally or by representative. The lot purchaser thereupon must present to said Henry N. Copp or his representatives, in writing, between the first and fifteenth days of June, 1894, a request for the return of the purchase money paid theretofore. This shall not include commissions, credits or sums paid as fines for delay in making payments. No excuse whatever will be accepted for failure to give the written notice aforesaid, between the first and fifteenth days of June, 1894, and all who do not give said notice as above specified, will be forever barred.” The declaration alleges a compliance with the terms of the contract as to the payment of the purchase money, and a written request for a return of the money between the first and fifteenth days of June, 1894. The only plea interposed on the part of the defendant, is that the demand for the return of the money was not made at the time specified in the contract. It is conceded that the appellee complied with the terms of the contract in the payment of all the monthly instalments from the date 01 the contract, and including the instalment for the month of May, 1894. And certain letters from the appellee to the appellant, dated the first and fifth day of June, 1894, respectively, and a reply thereto, dated the 7th day of June, 1894, from the appellant, are in proof, as evidence of demand under the contract. The Court below sitting as a jury ruled as a matter of law, that the letter dated June 1st, 1894, and the letters dated June 5th and June 7th, 1894, were a sufficient compliance as to notice with the requirements of the contract to entitle the plaintiff to have the money refunded to her, and that the plaintiff was entitled to recover. The contention of the appellant here is, that the Court erred in granting the plaintiffs prayers, because a demand made on June 1st, 1894, was not a compliance with the — 39 — terms of the contract, requiring a demand between the first and fifteenth of June, 1894. The prayers, however, it seems to us, are free from objection and contain the law of the case. It is well-settled, as a general rule, that in the sale and purchase of real estate the fixing a particular day for the completion of the contract is not regarded as of the essence of the contract. The parties may make it so, in express terms, or it may be implied, having in view the nature and character of the property and the object with which it is bought. “ It is, after all,” says this Court in Gilman, &c., Trustees, v. Smith, 71 Md. 174, “a question of intention.” But under the facts of the case now under consideration, even assuming that time was of the essence of the contract, we are clearly of the opinion that this condition of the contract was complied with. The letter of June first, written by the appellee, made a formal demand for the return of the purchase money in accordance with the terms of the contract, and was amply sufficient. This was followed, however, by a letter of June 5th, of the same year, in these words, “ In accordance with our agreement on March 6th, 1890, I, on Friday last, June 1st, delivered to one of your clerks, Miss Gilbert, for you a formal notification of my withdrawal from said agreement. Will you have the kindness to inform me if you have received this.” And upon this letter the appellant wrote, on June 7th, “ I beg leave to reply, that your notice of June 1st was received on the day specified. Shortly after the 15th instant, I will formally reply, when I know the number who intend to apply for refund.” The letter of the 5th of June, 1894, makes the demand of June first a part of that letter, and was equivalent to a demand in writing as of the fifth Of 'June, 1894, and a compliance in respect to time, with the condition of the contract. But apart from this, the letter of the 7th of June, which acknowledged the receipt of the letters of June 1st, and of the 5 th of June, 1894, was clearly the recognition of a demand in the pos — 40 — session of the appellant, as of the 7th of June, 1894. And whether the demand be considered as of the 5th or of the 7th of June, 1894, it is not necessary for us to consider for the purposes of this case., because in either event it would be a sufficient notice and a compliance with the contract as to time. (Decided December 5th, 1895.) Being then of the opinion that the demand under the facts of this case for the payment of the money was sufficient under the contract to entitle the plaintiff to recover, the judgment will be affirmed. Judgment affirmed with costs.