The Washington times., 1934-05-03


that an expense of $12.00 was in.
CURED by them in repairing the
roof of the house; and also that
they expended the sum of $500
for the services of an architect to
determine whether or not the
house could be suitably converted
into a clubhouse; but these expen-
ditureS were clearly made in con-
temptation of a subsequent pur-
chase Of the property. Indeed, it
may be inferred that when these
expenditures we're made, it was
then the intention of defendant to
purchase the property. AS we have
observed, the mere intention to
purchase, without a written con-
tract or memorandum defining
that intention in the shape Of a
contract to purchase, is not suffi-
cient. Besides it has been held
that part performance, as an ele-
ment Of a binding contract, must
be performed by the party calling
for the enforcement of the con-
tract. Nothing is part perform
ance for this purpose Specific
performance which is only ancil-
larry or preparatory: it must be a
direct act which is intended to be
a substantial part performance of
an obligation created by the con.
tract as proved; and must be an
act which would not have been
done but for the contract; and it
must be directly in prejudice of
the party doing the act, who must
himself be the party calling for
the completion of the contract"
Williams VS.. Morris, 95 U. S. 457.
Here the expenditures, which it is
claimed constituted a part per-
formance, were made by the de-
fendant, and not by the enforcing
party, the plaintiff.
It also appears that in pursu-
ance of recommendation by the
committee on ways and means of
defendant club, the board of di-
rectors authorized the issuance of
check for $100, payable to
the order of Calvert, which check
the treasurer of the club sent to
Fennell for delivery to Calvert.
Presumably this $4,000 was to be
applied as an advance payment
upon the purchase price of the
property. No formal written con-
tract had been made between the
parties. Kraft prepared a con-
tract, which defendant refused to
execute. What effect the delivery
of this $4,000 to Calvert would
have had upon this case is not i'm
portant, since for reasons stated by
Fennell, the $10O was never de-
livered. Consequently, the issuance
Of a check for that amount, like
many other matters appearing in
this record, was simply indicative
of the intention of the defendant
to purchase this property.
The intention of the defendant
to purchase was clearly manifested
up until the time when Fennell dis
covered that a contract of sale
was on record which it became
necessary to have released, and
which was subsequently released.
Fennell then held up the settle
ment for some further investiga-
ton, and it was at this point that
defendant decided to have nothing
further to do with the transaction,
and all negotiations were closed.
It is probable that defendant
club would have purchased the
property on February 3, the date
fixed in the resolution by the
board of directors, had plaintiff at
that time been in position to make
satisfactory title; but when the
time arrived the title company re-
fused to issue certificate of title,
due to the discovery of a former
contract of sale on record, Which
Fennell, attorney for the club,
held to be a cloud on the title.
When a release of this contract
was procured and placed of record,
February 10 was fixer as the date
for closing the transaction. On
that date counsel for the club
made an examination of the
papers at the office of the title
company, and agreed to close the
contract as soon as he could make
an examination as to taxes and in
surance. It was at this point that
the club dropped the whole propo.
sition, and at it's next regular
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