181 Mass. 483 | Mass. | 1902
This is an action for breach of contract to recover a deposit paid by the plaintiff to the defendant in part performance of a written agreement entered into between the parties for the purchase and conveyance of certain premises described therein. The defendant agreed “ to execute and deliver a good and sufficient deed conveying said property on or before the 15th day of April, A. D. 1897.” The time was after-wards extended by mutual agreement to May 15. The premises were described by metes and bounds and then followed these words, “ Being the same premises conveyed to me [the defendant] by George T. Hawley by deed dated March 27, A. D. 1876, subject to the restrictions mentioned in the deed of said Hawley respecting the maintenance of a sidewalk.” The defendant tendered a warranty deed subject to the restriction mentioned in the deed from Hawley which the plaintiff refused to accept, and, after a demand for the return of the deposit, brought this action. The judge ruled upon the plaintiff’s opening offer of proof that the action could not be maintained and ordered a verdict for the defendant. The case is here upon the plaintiff’s exceptions to this ruling.
We assume that the defendant was bound to convey the land free from all incumbrances except the restriction in regard to the maintenance of a sidewalk. Linton v. Allen, 147 Mass. 231. We doubt whether the reference in the contract to the premises as “ being the same premises conveyed to me by George T. Hawley by deed dated March 27, A. D. 1876 ” is to be regarded as anything more than a part of the description, and whether it can be construed as binding the defendant to convey, as the plaintiff contends, the same premises, that is, the same title in
The representation that the premises could be subdivided as shown upon the plan has not been relied upon. Manifestly it did not refer and was not intended to refer to the action of the street commissioners, but to the physical capabilities of the tract.
Exceptions overruled.