Schenck, J.,
after stating the case: Had there been no further transactions between the plaintiffs and the appellant, the Consolidated, after the refusal of the plaintiffs to accept deed tendered by it to them, or after the plaintiffs bad filed answer in the action instituted by the Consolidated against them for specific performance, the plaintiffs could not now maintain this action for specific performance. However, the plaintiffs offered in evidence certain letters tending to establish subsequent transactions between the plaintiffs and the Consolidated, these letters being from and to Francis J. Heazel and D. H. Perry, vice-president and secretary, respectively, of the Consolidated. The letters to said Heazel and Perry were from Carlberg & Cook, Inc., who, as sales agents of the Consolidated, bad conducted the negotiations for the sale to the plaintiffs of the property involved.
To the introduction in evidence and consideration of these letters by the court, the Consolidated excepted. The Consolidated further excepted
to the findings of fact based upon said letters (Findings of Fact Nos. 15, 20, and 23), and to the conclusion of law based upon such findings. (Conclusion No. 1.)
The findings of fact based thereupon are supported by the letters, and the conclusions of law based thereupon are supported by the findings of fact. Therefore, the Consolidated’s appeal presents the question: Were the letters competent evidence? We hold that the question should be answered in the affirmative.
All of the evidence tends to show that Francis J. Heazel was the vice-president of the Consolidated, with full authority to act for his corporation in entering into the contract of purchase and sale of the property involved, and that the same was true of D. H. Perry, secretary of the Consolidated, and the court finds, without objection, that their authority is not questioned. (Findings of Fact Nos. 17 and 18.)
These letters, together with the findings of fact to which no exceptions are taken, disclose that Carlberg & Cook, Inc., were the exclusive real property sales agents of the Consolidated, and that they communicated the contents of their correspondence with the officers of the Consolidated to the plaintiffs, with the knowledge and consent of the Consolidated, and that the plaintiffs and the officers of the Consolidated acted thereupon, and as a result thereof met in Asheville on Monday, 23 April, 1934.
These letters and the findings of fact further tend to show that after the plaintiffs had declined to accept the deed tendered to them by the Consolidated on 5 October, 1933, and had refused to comply with the original contract of purchase and sale, and had filed answer in the action by the Consolidated against them for specific performance, and while said action was pending, they, the plaintiffs, informed Carlberg & Cook that they would carry out the original contract, and that Carlberg & Cook, under date of 27 March, 1934, communicated this information to the Consolidated, and that it, through its officers (vice-president and secretary), replied that it was ready, willing, and able to carry out the contract at such time as the plaintiffs desired, and suggested that all concerned meet in Asheville on 22 April, 1934, to close the transaction; and that as a result of these letters the plaintiffs came to Asheville on Sunday, 22 April, 1934, prepared and willing to consummate the purchase of the property involved, and that, after certain negotiations on Monday, 23 April, made proper legal tender of the purchase price of $25,000.00, with interest, on 24 April, which was declined by the Consolidated. Under this factual situation the competency of the letters as evidence is manifest.
The Consolidated also assigns as error the finding of the court to the effect that Mr. Lawrence Quigley, president of the Consolidated, gave to
Mr. Bror Carlberg, president of Carlberg & Cook, Inc., on 23 April, 1934, in Asheville, a memorandum indicating the exact amount ($23,-441.66) necessary to complete the transaction, and suggested a further conference the following day, and that Carlberg communicated this information to the plaintiffs. (Finding of Fact No. 24.) This assignment states that the court erred in making this finding “for that the same was predicated upon incompetent evidence.” No evidence is set forth in the record, except the memorandum itself. Therefore, it must be presumed that there was sufficient evidence to support the findings, and, under the facts found, the memorandum itself is clearly competent.
The exception of the Consolidated to the first conclusion of law “because said conclusion of law was based upon incompetent evidence, in that said conclusion of law was predicated upon Findings of Fact Nos. 15, 20, 23, and 24, and the letters therein set forth,” cannot be sustained, for the reason that the exceptions to said findings of fact upon which said conclusion of law is based, as well as to the competency of the letters as hereinbefore stated, cannot be sustained.
"While the original contract made time of its essence, and provided that the transaction should be consummated by 5 October, 1933, and the failure and refusal of the plaintiffs to comply therewith on or before that date, gave to the Consolidated, nothing else appearing, the right from then on to disregard the contract, still when the Consolidated, through its duly authorized officers and agents, wrote letters accepting the offer of the plaintiffs to close the sale in April, 1934, and made engagements to meet in Asheville at that time and for that purpose, it waived its right to disregard the contract on account of the former failure and refusal of the plaintiffs to close within the time named, and restored in the plaintiffs the right within a reasonable time to consummate the purchase. The findings of fact are to the effect that plaintiffs made full and proper tender at the time and place (24 April, 1934, in Asheville) fixed by the parties for the consummation of the contract.
Upon the appeal of the defendant Consolidated Realty Corporation, the judgment of the Superior Court is affirmed.
The plaintiffs appeal from so much of the decree as denies them the right to maintain an action for specific performance against the Ashe-ville Deposit Company, trustee, and the Real Estate Trust Company of Baltimore, Maryland. They filed but one exception, and that is to the second conclusion of law, which is to the effect that the plaintiffs are not entitled to relief sought against the Deposit Company, trustee, and the Trust Company.
The findings of fact, germane to the plaintiffs’ appeal, are that the Consolidated purchased the land involved at a foreclosure sale on 30 April, 1933, and registered the deed to it from the trustee on 29 September,
1933, and that this deed conveyed a valid title to the Consolidated (Finding of Fact No.
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Schenck, J.,
after stating the case: Had there been no further transactions between the plaintiffs and the appellant, the Consolidated, after the refusal of the plaintiffs to accept deed tendered by it to them, or after the plaintiffs bad filed answer in the action instituted by the Consolidated against them for specific performance, the plaintiffs could not now maintain this action for specific performance. However, the plaintiffs offered in evidence certain letters tending to establish subsequent transactions between the plaintiffs and the Consolidated, these letters being from and to Francis J. Heazel and D. H. Perry, vice-president and secretary, respectively, of the Consolidated. The letters to said Heazel and Perry were from Carlberg & Cook, Inc., who, as sales agents of the Consolidated, bad conducted the negotiations for the sale to the plaintiffs of the property involved.
To the introduction in evidence and consideration of these letters by the court, the Consolidated excepted. The Consolidated further excepted
to the findings of fact based upon said letters (Findings of Fact Nos. 15, 20, and 23), and to the conclusion of law based upon such findings. (Conclusion No. 1.)
The findings of fact based thereupon are supported by the letters, and the conclusions of law based thereupon are supported by the findings of fact. Therefore, the Consolidated’s appeal presents the question: Were the letters competent evidence? We hold that the question should be answered in the affirmative.
All of the evidence tends to show that Francis J. Heazel was the vice-president of the Consolidated, with full authority to act for his corporation in entering into the contract of purchase and sale of the property involved, and that the same was true of D. H. Perry, secretary of the Consolidated, and the court finds, without objection, that their authority is not questioned. (Findings of Fact Nos. 17 and 18.)
These letters, together with the findings of fact to which no exceptions are taken, disclose that Carlberg & Cook, Inc., were the exclusive real property sales agents of the Consolidated, and that they communicated the contents of their correspondence with the officers of the Consolidated to the plaintiffs, with the knowledge and consent of the Consolidated, and that the plaintiffs and the officers of the Consolidated acted thereupon, and as a result thereof met in Asheville on Monday, 23 April, 1934.
These letters and the findings of fact further tend to show that after the plaintiffs had declined to accept the deed tendered to them by the Consolidated on 5 October, 1933, and had refused to comply with the original contract of purchase and sale, and had filed answer in the action by the Consolidated against them for specific performance, and while said action was pending, they, the plaintiffs, informed Carlberg & Cook that they would carry out the original contract, and that Carlberg & Cook, under date of 27 March, 1934, communicated this information to the Consolidated, and that it, through its officers (vice-president and secretary), replied that it was ready, willing, and able to carry out the contract at such time as the plaintiffs desired, and suggested that all concerned meet in Asheville on 22 April, 1934, to close the transaction; and that as a result of these letters the plaintiffs came to Asheville on Sunday, 22 April, 1934, prepared and willing to consummate the purchase of the property involved, and that, after certain negotiations on Monday, 23 April, made proper legal tender of the purchase price of $25,000.00, with interest, on 24 April, which was declined by the Consolidated. Under this factual situation the competency of the letters as evidence is manifest.
The Consolidated also assigns as error the finding of the court to the effect that Mr. Lawrence Quigley, president of the Consolidated, gave to
Mr. Bror Carlberg, president of Carlberg & Cook, Inc., on 23 April, 1934, in Asheville, a memorandum indicating the exact amount ($23,-441.66) necessary to complete the transaction, and suggested a further conference the following day, and that Carlberg communicated this information to the plaintiffs. (Finding of Fact No. 24.) This assignment states that the court erred in making this finding “for that the same was predicated upon incompetent evidence.” No evidence is set forth in the record, except the memorandum itself. Therefore, it must be presumed that there was sufficient evidence to support the findings, and, under the facts found, the memorandum itself is clearly competent.
The exception of the Consolidated to the first conclusion of law “because said conclusion of law was based upon incompetent evidence, in that said conclusion of law was predicated upon Findings of Fact Nos. 15, 20, 23, and 24, and the letters therein set forth,” cannot be sustained, for the reason that the exceptions to said findings of fact upon which said conclusion of law is based, as well as to the competency of the letters as hereinbefore stated, cannot be sustained.
"While the original contract made time of its essence, and provided that the transaction should be consummated by 5 October, 1933, and the failure and refusal of the plaintiffs to comply therewith on or before that date, gave to the Consolidated, nothing else appearing, the right from then on to disregard the contract, still when the Consolidated, through its duly authorized officers and agents, wrote letters accepting the offer of the plaintiffs to close the sale in April, 1934, and made engagements to meet in Asheville at that time and for that purpose, it waived its right to disregard the contract on account of the former failure and refusal of the plaintiffs to close within the time named, and restored in the plaintiffs the right within a reasonable time to consummate the purchase. The findings of fact are to the effect that plaintiffs made full and proper tender at the time and place (24 April, 1934, in Asheville) fixed by the parties for the consummation of the contract.
Upon the appeal of the defendant Consolidated Realty Corporation, the judgment of the Superior Court is affirmed.
The plaintiffs appeal from so much of the decree as denies them the right to maintain an action for specific performance against the Ashe-ville Deposit Company, trustee, and the Real Estate Trust Company of Baltimore, Maryland. They filed but one exception, and that is to the second conclusion of law, which is to the effect that the plaintiffs are not entitled to relief sought against the Deposit Company, trustee, and the Trust Company.
The findings of fact, germane to the plaintiffs’ appeal, are that the Consolidated purchased the land involved at a foreclosure sale on 30 April, 1933, and registered the deed to it from the trustee on 29 September,
1933, and that this deed conveyed a valid title to the Consolidated (Finding of Fact No. 10) ; that on 5 October, 1933, tender of a valid deed for the property was made by the Consolidated to the plaintiffs, in accord with contract of purchase and sale entered into on 5 August, 1933, which deed was refused and contract breached by the plaintiffs, and, on the same day, suit for specific performance was instituted by the Consolidated against the plaintiffs; that on 20 October, 1933, the Consolidated executed and delivered to the Deposit Company, as trustee, a deed of trust on the property involved to secure a note held by the trust company for $57,000; and that on 26 April, 1934, this action for specific performance was instituted by the plaintiffs against the three defendants, the Consolidated, the Deposit Company, trustee, and the Trust Company.
There is no finding that either the Deposit Company, trustee, or the Trust Company, on 20 October, 1933, the date they received the deed of trust from the Consolidated, had any knowledge of the contract between the plaintiffs and the Consolidated for the purchase and sale of the property involved. There is an affirmative finding that the Trust Company is an independent corporation with “no underlying connection in any particular with either of its codefendants” (Finding of Fact No. 22), and it appears, from the facts found, that the Deposit Company, trustee, was simply a stakeholder.
There is no finding of fact to the effect that the action for specific performance instituted by the Consolidated against the present plaintiffs on 5 October, 1933, was docketed and indexed as
lis pendens.
However, if it be conceded that the Deposit Company, trustee, and the Trust Company had knowledge of the pendency of that action, such knowledge would not be notice of any claim by the plaintiffs, since they, as defendants in that action, were alleging and contending that the contract then in suit was obtained by misrepresentation, and was therefore void, and that no valid claim could arise therefrom.
Neither-the Deposit Company, trustee, nor the Trust Company was a party to the contract sued upon in this action, and neither is fixed with any knowledge, actual or constructive, of said contract at the time the deed of trust under which they claim became effective.
Upon the facts found, to which no objections were lodged, we concur in his Honor’s holding (Conclusion of Law No. 2) that the plaintiffs are not entitled to a decree of specific performance against the Deposit Company, trustee, and the Trust Company.
Upon the appeal of the plaintiffs the judgment of the Superior Court is affirmed.
Affirmed on both appeals.
DeviN, J., took no part in the consideration or decision of this case.