262 Mass. 203 | Mass. | 1928
This is a suit in equity whereby the plaintiff seeks to compel the defendants specifically to perform an agreement to convey land to him. The judge by whom the case was heard made findings of fact and entered a final decree in favor of the plaintiff. The case comes before us on appeal by the defendants with a full report of all the evidence. The findings of fact are amply supported by the evidence, and must be accepted as true. Briefly stated, those facts are that in 1919, by a written contract, the plaintiff agreed to buy and the defendants to sell two lots of land for a specified sum, of which $60 was the initial payment, the balance being payable at the rate of $10 each month. In February, 1922, the defendants, for the sums already paid, conveyed one of these lots to the plaintiff, the contract remaining in force as to the other lot. On January 1, 1923, the balance charged against the plaintiff upon the books of the defendants was $578.54. The plaintiff made no payments in 1923. In 1924 he paid $60 in instalments, besides the taxes for that year. In 1925 he paid $60 in instalments. On March 25, 1926, he paid $40 in one sum. This was the last payment made by him. On November 9, 1926, the plaintiff offered to pay $30 upon the contract, but was informed by one of the defendants that they had, on August 1 previous, “exercised the option and decided to close the account.” The plaintiff has been ready and before filing this bill offered to pay the entire amount due upon his contract, but the defendants have declined to accept it upon the ground that on August 1, 1926, they exercised their option under the contract to cancel the same for default of the plaintiff in failing to keep up the payments, and claim
Further findings of the judge are that it appears that, while during the period between the date of the contract and the time when the plaintiff paid for and took title to one of the lots [February, 1922], the instalment payments were made with considerable regard for punctuality, since February, 1922, and for about four years, the plaintiff has made payments [which the defendants have during all this period accepted without, so far as appears, making any objection or giving any warning against future delays] at times far behind the dates when according to the contract such pay
Parties have a right to make a stated time for performance the essence of a contract. Such an agreement, when not waived either by words or conduct, is binding and will be given effect by courts of equity as well as of law. Garcin v. Pennsylvania Furnace Co. 186 Mass. 405. Preferred Underwriters, Inc. v. New York, New Haven & Hartford Railroad, 243 Mass. 457. Hazen v. Warwick, 256 Mass. 302, 307. Steedman v. Drinkle, [1916] 1 A. C. 275. Brickles v. Snell, [1916] 2 A. C. 599. The contract in the case at bar was of that nature.
No principle of law or equity prevents the waiver by parties of such terms of a contract, however explicit may be its phraseology. Waiver may be manifested by acts as well as by words. The defendants, by a course of conduct covering nearly if not quite three years, accepted from the plaintiff payments long overdue. As a consequence, they have taken from him more than one fourth of the entire amount due under the contract. In addition, he has paid some of the taxes on the land, which accrued to the benefit of the defendants. All this the defendants claim as a forfeiture or, to use the words of the contract, as “liquidated damages.” There is no finding that the failure of the plaintiff promptly to make payments was intentional or wilful or in any way offensive, or that it has caused any loss to the defendants for which full compensation cannot be made by payment of interest. There are no facts in the case at bar on which the principle of Finkovitch v. Cline, 236 Mass. 196, can be applied, to the effect that the conduct of the party
The case at bar is quite distinguishable from cases like Colonial Development Corp. v. Bragdon, 219 Mass. 170, and Boss v. Greater Boston Mortgage Corp. 251 Mass. 455.
In the opinion of a majority of the court the entry must be,
Decree affirmed with costs.