the Contract, giving to the entire instrument its plain and ordinary meaning, and considering the situation together with local practice, it appears to the Court that the contention of the purchaser and the agent is untenable -- See separate opinion of Stephens, C.J., Partridge v. Presley, 1951, 88 U.S.App.D.C. 298, at page 302, 189 F.2d 645.
Expenses usually charged against the purchaser in a real estate sale are the preparation of the deed and deed of trust, the title search, settlement costs, recording the deed and deed of trust, adjustments on taxes, insurance and notary fees. In the present case the contract itself provided that, 'Examination of title, Tax certificate, conveyancing, notary fees, State revenue stamps, if any, and all recording charges, including those for purchase money trust, if any, are to be at the cost of the purchaser who hereby authorizes the undersigned Agent to order the examination of title; * * *'.
As a general rule it is, of course, true that all conditions in the contract must be fulfilled except when the performance of the condition is excused or when it is so apparent that even if there were performance the other party to the contract would nevertheless refuse to carry out its obligation. Friedman v. Decatur Corporation, 1943, 77 U.S.App. D.C. 326, 135 F.2d 812.
The seller was already substantially notified that the purchaser was not ready to perform its obligations under the contract. Hence to require the seller to do anything further under the circumstances would be to stand on useless ceremony and it is well settled that the law does not require performance of a useless act. See 55 Am.Jur. 754, Vendor and Purchaser, Sec. 325.
Thus, in the Court's opinion, no actual manual tender was necessary under the facts of this case. Cf. Hazleton v. Le Duc, 1897, 10 App.D.C. 379, at page 395 et seq. and cases cited therein. The evidence submitted by the purchaser upon the question as to why the settlement was not effected by the parties is clearly wanting in legal sufficiency. The facts show that the seller was ready, willing, and able, and even offered to perform his part of the contract and that the purchaser was well aware of his disposition. In the circumstances, considering the failure of the purchaser to meet the burden of proof imposed upon it the Court concludes that the declaration of forfeiture by the seller was proper, and holds that the seller is entitled to one-half the deposit in accordance with the terms of the contract.
Counsel for the seller will prepare proper findings of fact, conclusions of law and judgment in accordance with this opinion.
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