236 Mass. 221 | Mass. | 1920
These are cross suits in equity. On March 31, 1920, the parties entered into a contract in writing whereby Libman agreed to sell a tract of real estate for $2,000 above an existing mortgage and Levenson agreed to purchase and pay for the same, "Papers to pass ... on or before April 10, 1920.” The real estate “as described in the agreement consists of a parcel of land numbered 202-208A Washington Street, Dorchester District of Boston, comprising 7,030 square feet of land and a one story brick block of six (6) stores thereon,” built in 1916.
On or about April 5, 1920, a retaining wall on the rear of the premises, without any fault on the part of Libman, collapsed on account of erosion and other natural causes and fell on to and across a yard about fifteen feet in width situated between the retaining wall and the building and on to and against the rear of the building causing the greater part of the rear wall of four of the stores to collapse and breaking the windows in the front of the four stores.
No repairs were made on the premises after the collapse, and the building and premises have since remained and now are in the same damaged condition as they were immediately following the collapse.
The question is whether Levenson can be compelled to take conveyance and pay for the real estate under these circumstances or whether he is entitled to cancellation of the contract and recovery from Libman of the money already paid on account of the contract.
It is manifest from the facts that there has been a destruction or loss of a substantial part of the real estate constituting the subject matter of the contract occurring before the time fixed for performance without the fault of either party. The real question is where that loss must fall.
This hardly can be regarded as an open question in this Commonwealth. In Thompson v. Gould, 20 Pick. 134, a contract had
The statement above quoted appears to have been accepted as the law of the Commonwealth. In Wells v. Calnan, 107 Mass. 514, an action of contract was before the court for breach of a written agreement to purchase land, where the buildings were destroyed before the deed was tendered. It was said by Mr. Justice Gray, relying in part upon Thompson v. Gould as well as upon other previous decisions fully reviewed by him, "When property, real or personal, is destroyed by fire, the loss falls upon the party who is the owner at the time; and if the owner of a house and land agrees to sell and convey it upon the payment of a certain price which the purchaser agrees to pay, and before full payment the house is destroyed by accidental fire, so that the vendor cannot perform the agreement on his part, he cannot recover or retain any part of the purchase money.” The question again was presented in an action for breach of contract in Hawkes v. Kehoe, 193 Mass. 419, where at pages 424 and 425 occurs this statement: “We need spend no time upon the numerous cases in England and in this country which the industry of counsel has brought to our notice as to the rights of parties to such agreements upon a total or partial destruction of the buildings by fire.See the cases collected in 29 Am. & Eng. Encyc. of Law, (2d ed.) 712 et seq., and in Ames, Cases in Eq. Jur. 228, note 2. We are
There are decisions to the contrary collected in an article in 33 Harv. Law Rev. 813, 822 to 834. In view of the positive statements of the law already quoted from our own decisions, it does not seem necessary to review those not in harmony with them.
In the suit of Libman v. Levenson decree is to be entered dismissing the bill, and in that of Levenson v. Libman decree is to be entered declaring the agreement terminated, for the repayment to the plaintiff of the $200 paid by him on account of the contract and for his costs.
So ordered.