3 Mass. App. Ct. 733 | Mass. App. Ct. | 1975
The plaintiff appeals from a final decree dismissing his bill in equity after an interlocutory decree (from which he also appeals) sustaining the demurrer of the defendants. We apply the tests with respect to the sufficiency of the pleadings embodied in the Massachusetts Rules of Civil Procedure and adopt the terminology of those rules. Charbonnier v. Amico, 367 Mass. 146, 147, and fn. 3 (1975). The complaint alleges an agreement annexed to it (see Mass. R.Civ.P. 10 [c], 365 Mass. 752 [1974]) for the purchase by the plaintiff from the defendants of land in Mashpee and prays (among other things) that the court order the defendants “to carry out all of the terms of the Agreement on their part to be performed....” The complaint also alleges “[t]hat since September, 1972, the Petitioner has been ready, willing and able to carry through all the requirements of said agreement, and has tendered payment to the Respondents ... [t]hat since September 1, 1972, the Petitioner has made repeated demands that the Respondents carry through all the requirements of said agreement... [and] [t]hat the Respondents refused and still refuse... to carry through all the requirements of said agreement.” The defendants do not attack the validity of the contract or the adequacy of the tender allegedly made “since September, 1972,” though the date for passing papers was specified to be “on or before September 1, 1972.” The complaint was brought within six weeks thereafter, and there was no provision that time was of the essence. Limpus v. Armstrong, ante, 19, 21-24 (1975). See Dennett v. Norwood Housing Assn. Inc. 241 Mass. 516, 520 (1922). It is clear from the above that “the complaint states a claim upon which relief can be granted,” which is the essential issue raised in the motion to dismiss in this case. The Charbonnier case, supra, at 147. The complaint con
So ordered.
