Mengis v. Carson

114 Mass. 410 | Mass. | 1874

Colt, J.

This action is upon a written contract to convey real estate upon payment of the principal part of the purchase money within a limited time, with security by second mortgage for the balance.

There was no tender of the purchase money or of the mortgage by the plaintiff before suit brought. And the right to recover for the alleged failure of the defendant to perform was at the trial put on the ground that the defendant had renounced the contract and waived the plaintiff’s allegation to perform or to offer to perform his part of the agreement.

The plaintiff relied on the defendant’s letter, written the day after the agreement was entered into, in which he stated that he was unable to give a full title and must withdraw his offer, to meet which there was evidence that the plaintiff at once replied that he should hold defendant to his bargain, and that afterwards, before the defendant knew of the commencement of this action, within a reasonable time, upon notice that the defendant was willing to deliver a deed pursuant to his original agreement, the parties resumed negotiations, and, before the expiration of the time limited by the contract, a deed was prepared ready for delivery, which the plaintiff objected to as insufficient in the quantity of land described.

Upon this state of the case we see no error in the instructions given, the evidence admitted, or the refusal to rule as requested, upon the point that there had been a breach of the contract by the defendant which excused the plaintiff’s performance of it. The instructions were at least sufficiently favorable to the plaintiff.

Where the question is as to the performance of a contract required by the statute to be in writing, evidence of the subsequent conduct or written and oral declaration of the parties is admissible to affect that question. Such evidence is competent on the question whether the defendant has or has not released the plaintiff from the performance of concurrent and dependent stipulations. It was so admitted here, and taking all the instructions -ogether, as applied to all the evidence, it is plain that the jury must have found that there was no breach or renunciation of this contract recognized by the plaintiff, such as would excuse the plaintiff from his part of its performance. The evidence reported warranted this finding. A refusal to accept performance even before any offer thereof, distinctly made with the purpose and intention of dispensing with an offer, would ordinarily be a sufficient waiver, if not subsequently cured by seasonable notice of a change of purpose. Carpenter v. Holcomb, 105 Mass. 280. So, if the defendant has voluntarily disabled himself to perform, as by a conveyance of the estate to a third person. Newcomb v. Brackett, 16 Mass. 161. The law does not require an idle ceremony in such cases. On the other hand, a mere declaration of unwillingness which shows only a passing intention on the part of the defendant of which he may repent, and which does not amount to an assurance that the other party is relieved from the part required of him, has been held not to be sufficient. Pomroy v. Cold, 2 Met. 500.

Exceptions overruled.