221 Mass. 75 | Mass. | 1915
On November 7, 1912, the defendant Wiles wrote to the plaintiff that he would buy his “place” in Hingham for $14,500 if he would assist him in placing a mortgage on it for the sum of $7,500. We shall hereafter speak of the defendant Wiles as the defendant. This offer was accepted by the plaintiff, and within a few days he arranged for such a mortgage on the premises. Under that arrangement the defendant signed an application for a mortgage on November 12, 1912.
The plaintiff did not own his “place” in Hingham, but had been in occupation of it since December, 1902, under an option of purchase contained in a lease which expired on December 1, 1912. The lease and the option covered not only the tract of land here in question (some fifteen acres in extent), but another tract of some three or four acres on the other side of East Street. No time was specified in the agreement when the papers were to be passed. The defendant refused to accept the certificate of the mortgagee’s conveyancer as to title and insisted upon the title being passed by John D. Drum, Esquire. It would seem that the plaintiff, having a right to a good title from those who had succeeded to the title of hid lessors, and being bound to give to the defendant a good title, put the defendant’s conveyancer, Mr. Drum, in communication with H. F. Atwood, Esquire, who was acting for the successors of the lessors, and left the matter of title to be adjusted between them.
The original lessors were William P. Beale and John C. Beale. Both were non-residents and both died after the date of the lease and before the agreement between the plaintiff and the defendant. Mr. Drum found that John C. Beale died testate, a citizen of New' York; that his will had been duly admitted to probate there, but that no ancillary allowance had been made in this Commonwealth. He notified Mr. Atwood of the fact and asked to have the will allowed in this Commonwealth. Mr. Atwood got the necessary papers from New York, and on December 11,1912, filed a petition for ancillary allowance of the will here. The citation on this petition was returnable on January 27, 1913. During November the option had been extended by the successors of the lessors until
The plaintiff seems to have let the defendant know that he looked to the money coming to him under the contract between him and the defendant to enable him to pay the successors of the lessors the money due them under the option. The defendant had difficulty in raising the balance of the purchase money over and above the $7,500 mortgage (which the plaintiff had arranged for in the interest of the defendant) and wrote the plaintiff’s attorney to that effect several times during the months of December and January. On December 24, when the time fixed for the expiration of the option was January 10, he wrote to the plaintiff’s attorney that within the last two days before the date of the letter he had found that he would not be able to raise the money in time for the passing of the papers on January 10. He ended that letter with the statement that he was just as anxious to. purchase as formerly, “except that the delay has worked out so that I will have to wait until about March 1st before I can secure the money.” In answer the plaintiff’s attorney wrote that the plaintiff doubted whether he could secure a further extension of his option. He ended his letter in these words: “As Mr. Mansfield has been looking entirely to you to raise the money and has no other means of raising it on such short notice, I hope you can advise me at once that you will be able to carry out your part of the agreement.” As we have already stated, the option later on was extended until February 3. On January 13 the defendant wrote to the plaintiff’s
Between March 3, when the plaintiff tendered to the defendant the conveyance of his “place” in Hingham, and April 16, when the present bill in equity was filed, an agreement was entered into between the plaintiff and the defendant which resulted in all the land covered by the option being conveyed to the wife of the defendant Wiles, heretofore spoken of as the defendant. It is apparent that this subsequent agreement was in the nature of a compromise. It has been so treated in effect by both parties, in that no reference has been made to it by either party in support of-their respective contentions in this suit.
The judge who heard the case
The second finding is as follows: “I find that the taking of this strip off the front yard, under all the circumstances, made a substantial difference in the premises intended by the parties to
A final decree reciting these findings was entered dismissing the bill, and from that decree the plaintiff took the appeal which is now before us.
The only defences now insisted upon by the defendant are his right to abrogate the contract as he undertook to do in his letter of February 8, and the mutual mistake which existed by reason of the highway commission’s taking of the four hundred and ninety-two square feet. It is not necessary to consider any other possible defences.
The defendant, relies upon the case of Lowe v. Harwood, 139 Mass. 133, in support of the ruling of the judge that the plaintiff’s contract came to an end when the defendant undertook to abrogate it because it had not been performed within a reasonable time. But the decision in Lowe v. Harwood was made in an action at law, and this is a suit in equity. The rule as to when a contract for the purchase and sale of real estate must be performed is not the same in equity as it is at law. At law it must be performed within the time specified in the contract, or (where no time is there specified) within a reasonable time. And if not then performed it may be rescinded by either party, as was held in Lowe v. Harwood. But in equity, unless time has been made the essence of the agreement, the contract need not be performed within the time therein specified, nor within a reasonable time where no time has been specified in the agreement. There were intimations in Richmond v. Gray, 3 Allen, 25, and in Goldsmith v. Guild, 10 Allen, 239, that this rule ought not to obtain in this country where sales of land stand on a somewhat different footing from that on which they stand in England. But the existence of the rule in this Commonwealth was recognized in the case of Fuller v. Hovey, 2 Allen, 324, and-the whole subject (including the earlier cases) was carefully considered in
In the first place time was not made of the essence of the contract here in question by the terms in which that contract was drawn.
In the second place there is nothing in the conditions surrounding the contract from which it could be found that as matter of implication time was of the essence of the contract. The contrary is manifestly the fact. By common consent the adjustment of the title had been left to the conveyancer of the defendant and the counsel of the successors of the lessors, and the somewhat desultory course of proceedings adopted by them never was objected to, certainly not by the defendant. On the contrary it is apparent that until the eighth of February (at any rate) the defendant was urging a postponement of the day for passing the papers because he had not been able to raise the money which he had to raise over and above the $7,500 provided for by the mortgage which the plaintiff had arranged for him. On December 24 the defendant had written to the plaintiff’s attorney that he would not be ready with the money before March 1, and as late as January 16 he had written to the plaintiff’s attorney that he could not give him “definite word” that he would be ready to carry out the contract on February 3, and offered to let the plaintiff use his securities in raising the money because he had been unable to do anything with them in this market. This offer
For these reason's a majority of the court are of opinion that the bill should not have been dismissed on the first ground on which it was dismissed.
This brings us to a consideration of the second ground on which the bill was dismissed in the Superior Court. In Frye on Spec. Perf. (5th ed.) § 1231, it is stated: “On the general principle already stated, the mere fact of the existence of some small or (to the purchaser) immaterial incumbrances on the property is not enough to deprive a vendor of his right to insist on the specific performance of the contract.” For a collection of cases, see note to Ames Cases in Equity Jurisdiction, 245, 246.
The finding made in the Superior Court that “the taking of this strip off the front yard, under all the circumstances made a substantial difference in the premises intended by the parties to be conveyed” comes within the rule of Harvey-Watts Co. v. Worcester Umbrella Co. 193 Mass. 138, and particularly within that rule as applied in Old Corner Book Store v. Upham, 194 Mass. 101. See in that connection Hurd v. General Electric Co. 215 Mass. 358. The decision of the issue in the case at bar does not depend upon the credibility of witnesses. But in the case at bar, as in Old Corner Book Store v. Upham, the decision depends upon the inference to be drawn from evidence not in conflict.
The land here in question had a frontage on East Street of about thirteen hundred feet, and from the plan submitted the house would appear to have been situated some eighty feet back from the side line of the road. The strip of land taken by the highway commissioners was one hundred and forty odd feet long, and varied from nothing to six and one half feet in width. The side line of East Street before the taking by the highway commissioners at this point consisted of a retaining wall about three feet high. It appeared that there were some trees inside this retaining wall.
Both parties have assumed that the talcing by the highway commissioners under St. 1894, c. 497, was a valid taking and constitutes a present incumbrance although the owner of the land never had actual notice of the taking and the land has not been used during the sixteen years which have elapsed since the taking was made. The defendant is entitled to a deduction as compensation for the damage, if any, which he has suffered by reason of this taking by the highway commission.
It follows that the decree dismissing the bill was wrong, and that the plaintiff is entitled to specific performance of the contract. Under the agreement of compromise the defendant Wiles must pay him the balance of the purchase money, amounting to $2,500 with interest from the third day of March, 1913, less such sum, if any, as shall be found to be due from the plaintiff by reason of his failure (if there was a failure) to make title to the four hundred and ninety-two square feet taken by the highway commission in 1897; and the defendant’s wife must convey to the plaintiff the lot of land on the north side of East Street. The plaintiff is entitled to costs against the defendant Wiles; and it is
So ordered.
Crosby, J. The final decree in this case was made by Crosby, J., as a judge of the Superior Court on December 30, 1913, although it was not entered formally until January 26, 1914. On December 31, 1913, Mr. Justice Crosby became a member of this court.