276 Mass. 282 | Mass. | 1931
This is an action of contract to recover $2,000, deposited with the defendant as security for the performance of a written agreement. In 1917 the plaintiff was the owner of a tract of land situated in Weymouth. He subdivided the land into fifteen hundred thirty-three lots and began to sell them for the erection of camps, small houses and summer places. There was no public water supply on the land and, as a result of negotiations with the officers of the town, the plaintiff signed and delivered to the defendant a writing dated April 26, 1917, and entitled “Agreement by Henry S. Moody, Trustee, that the town of Weymouth shall receive an income of seven per cent on costs and construction of extending town water to Idlewell.” The writing was not signed by the defendant. It recites in substance that: “Whereas said Town of Weymouth is willing to extend and lay the necessary pipe or water main to and through said property, provided it may be secured as to receiving an annual return equal to seven percent of the actual cost of such extension and laying said pipe or water main for a certain definite period”; (1) the plaintiff “hereby guarantees to said Town of Weymouth for a period of five years from June 1, 1917 said
There was evidence that on August 8, 1927, (the date of the writ) a little more than one third of the total area had available water and that on June 1, 1922, thirty-one persons were taking water, and on August 8, 1927, eighty-two persons were using the water. There was also evidence that after the contract was executed and before August 8, 1927, some of the persons living on the land stayed there the entire year, and by agreement between the parties to this contract deep water service was installed in a few streets, and that certain of these streets had been accepted by the town; that all the streets on the tract as shown by the plan in length were slightly over nineteen thousand feet; that approximately twelve hundred lots were available for building purposes; that the plaintiff had sold before August 8, 1927, about one thousand lots; that each house erected on the property covered at least two lots and in some cases three or four lots were used by the owner. It was agreed in open court by counsel for the defendant that up to the date of the writ there had been no breach by the plaintiff of any of the provisions of the agreement.
The bill of exceptions contains all the facts and evidence material to the issues presented. The defendant at the close of the evidence filed a motion for a directed verdict, which was allowed subject to the plaintiff’s exception.
It is the contention of the plaintiff that the entire agreement came to an end at the expiration of five years from June 1, 1917, and that he is now entitled to recover back the amount of his deposit. The defendant contends that, although the guaranty contained in paragraph numbered 1 has expired, the agreements contained in paragraphs numbered 2-6, both inclusive, are still in force and that it is entitled to retain the security to protect itself from loss on these several agreements.
The contention of the plaintiff that the contract in its
The plaintiff also argues that the agreement was to be operative only for a reasonable time, and that what was a reasonable time was a question for the jury to determine, citing Zeo v. Loomis, 246 Mass. 366. The facts in that case are plainly distinguishable from those here presented. When this action was brought only a little more than one third of the total area had water available for use, and at that time there were only eighty-two persons taking water, although about one thousand lots had been sold. In these circumstances paragraphs numbered 2-6, both inclusive, of the agreement are applicable. As these paragraphs are in full force and are binding upon the plaintiff it is unnecessary to
The defendant’s motion for a directed verdict was rightly granted.
Exceptions overruled.