Parker Vein Coal Co. v. O'Hern ( 1855 )

Tuck, J.,

delivered the opinion of this court.

A proceeding in equity was pending for the sale of a tract of land called “ Timothy Level” of which the appellee, O’Hern, owned three-fifths, the residue belonging to persons claiming under Samuel Jackson. On the 10th of December 1852, before a decree was passed, O’Hern, and Jewett the agent of the appellants, entered into the agreement set out in the record, which was afterwards assigned by Jewett to the company and by them accepted, with O’Hern’s consent, subject to all its terms and conditions. A decree was passed for a sale and distribution of the proceeds, on the 26th of April 1853, and a sale made on the 30th of June of that year. At this sale, as appears by the petition of the appellants and the answer of O’Hern, the whole property was purchased by the agent of the appellants, under an arrangement between him and O’Hem, by which the appellants became owners of the property at $71,309.37, being much more than they had agreed to pay O’Hem for it. All the payments have been made except the last instalment of $15,000. The company now insists, that O ’Hern having failed to perfect his title to the whole property, and they having been compelled to purchase the. two-fifths, which he had agreed to procure and convey to them, at a price much above the sum they had agreed to pay, he is answerable for such non-compliance with his contract; and they claim to be compensated by having the sum of $15,000 audited by them, instead of O’Hern or his assignees.

The parties to the agreement contemplated the purchase of the whole land by O’Hern at the trustee’s sale and the possibility of his buying the outstanding two-fifihs before that time, but it is not clear by any means that they expected O’Hern to lose what these shares might cost over and above the rate at which he had sold the others ■, on the contrary, it would seem that if he succeeded in buying these shares, even at a greater rate, the excess over the $12,000 retained by the company was to be paid by them. Under this view of the contract, the company are not in any worse position, as vendees of the trustee, than they would have occupied if O’Hern had bought and conveyed to them. But we deem it unnecessary to place a construction on this part of the instrument, because we take it to be very clear, that a party cannot by his own act prevent another from performing his engagement and then complain that he has not kept its stipulations. Rodemer vs. Hazlehurst, 9 Gill, 288. Rail Road Co. vs. Resley, 7 Md. Rep., 313. If this contract contained an agreement to purchase and convey the outstanding shares, as contended by the appellants, the purchase by them at the trustee’s sale, even with O’Hern’s consent, in the absence of any qualification of the legal effect of that act, operated in equity as a waiver. There is nothing here to show that the company was under any necessity or compulsion to buy the land. It was their voluntary act, under an arrangement with O’Hern, and he may well object to their ascribing to it an effect which does not appear to have been contemplated by him or them at the time.

JNot perceiving that the appellants have any cause of complaint against the action of the court below, its order will be affirmed.

Order affirmed, with costs,