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Binder v. Benson

Decided: June 9, 1961.

BINDER ET AL.
v.
BENSON ET AL.



Appeal from the Circuit Court for Anne Arundel County (DUCKETT, J.).

The cause was argued before Brune, C. J., and Hammond, Prescott, Horney and Sybert, JJ.

Hammond

HAMMOND, J., delivered the opinion of the Court.

In a suit claiming damages for breach of contract by appellees in refusing to convey land which appellants say was

sold to them, the trial judge, sitting without a jury, found that appellees had not agreed to a material change in the proposed contract offered by appellants, and entered judgment for appellees.

Mr. and Mrs. Robert Benson, and their daughter Kathryn, owned forty-one unimproved lots and four houses, all shown on an approved subdivision plat, and some eighteen adjacent acres, in Anne Arundel County which they had listed for sale. Early in January, 1959, appellants, after inspecting the property, prepared a contract which they signed and delivered to the real estate agent, Martin, for submission to the owners. The proposed contract was undated, called for a purchase price of $21,500, with a down payment of $500.00 and an additional deposit of $2,000 within thirty days of acceptance by the owners. The balance of the purchase price was to be paid within one hundred twenty days of the date of acceptance.

The owners refused this offer and made a counter offer by drawing a line through the proposed purchase price of $21,500 and interlining and initialing a new price of $34,000. They also signed the contract and gave it to Martin to offer to the appellants. Their counter offer was rejected by appellants, who blocked out the $34,000 price on the typewriter and typed in the price of $26,500. Both appellants initialed this change. A paragraph was added on the back of the contract, which provided that $5,000 (the difference between appellants' first offer of $21,500 and their second offer of $26,500) would be secured by a mortgage on the eighteen-acre tract to be executed at settlement for a term of six months with interest at 6%. This change was also initialed by appellants. When this new offer of the appellants was presented to the owners, they again refused it and suggested a counter offer of $29,000.

The real estate agent says that while at the home of the owners, he wrote in with his pen the figures $29,000 on the same, by now somewhat tired contract forms, and that this change was then initialed by the owners. One of the appellants testified that the physical change in price was made by the agent in appellant's office when the contract was brought back. There is no dispute that in the office of one of the appellants the date of January 20, 1959, was inserted in the

proposed contract and the paragraph on the back was stricken through, and a new paragraph was typed there which called for the securing of the balance of $7,500 by a purchase money mortgage to be executed at settlement on the eighteen-acre tract for nine months with interest at 6%. This new paragraph was initialed by the appellants. Also, one more change was made. The provision that the payment of the additional $2,000 deposit was to be made within thirty days of the acceptance of the contract was changed by striking out the word and figure "thirty (30)" and the writing in, almost illegibly, of the word and figure "forty-five (45)." Appellants initialed this change.

When the agent presented the last offer of the appellants to the owners, they initialed the new paragraph on the back (and, if they had not already done so, the $29,000 price) but not the change from thirty to forty-five days. The agent says he forgot to have them initial that change, that it was an oversight. When he returned their copy of the contract to the appellants, he told them he had overlooked having that change initialed.

Appellants, because the change from thirty to forty-five days had not been initialed by the owners and because "the contract wasn't as tidy as it could be," typed four copies of a redraft, a so-called "clean copy," and sent it by the agent to the owners for their signature. When he delivered it he explained about the change from thirty to forty-five days and left the copies with them for signature. The redraft was never signed by the owners. When one of appellants called Miss Benson to find out why, she told him that the contract had been altered without the Bensons' consent. He "tried to explain to her that it must be an oversight, that they either hadn't noticed ...


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