112 Mass. 15 | Mass. | 1873
This case is substantially disposed of by the decision in Hurley v. Brown, 98 Mass. 545. It was there held that a written promise to convey an estate in a certain street would be presumed to relate to an estate owned by the party making the promise. If he owned but one estate answering that description, that is to be regarded as the one to which the description refers. The written memorandum therefore has the same meaning as if the expression had been “ my house between D and E streets,” which would have been a sufficient description. Bird v. Richardson, 8 Pick. 252. Phelps v. Sheldon, 13 Pick. 50. Atwood v. Cobb, 16 Pick. 227.
It is equally clear also that the house was to be conveyed, not as mere personal property with an easement in land, but by a warranty deed, and as real estate. Esty v. Currier, 98 Mass. 500, and cases there cited. The proper construction of the agreement is that the house was to be conveyed, with the land upon which it stood, and so much more as was necessary to its beneficial enjoyment, and within the power of the defendant to convey. Forbush v. Lombard, 13 Met. 109. Johnson v. Rayner, 6 Gray, 107. Wooley v. Groton, 2 Cush. 305. Greenwood v. Murdock, 9 Gray, 20.
As the defendant distinctly refused to fulfil the contract, nothing was necessary on the plaintiff’s part except a readiness and willingness, accompanied with an ability, to do all that the agreement required of him, provided the defendant would concurrently do what was required of him; and provided, also, this readiness, willingness and ability were duly made known to the defendant. No more formal tender was necessary than was made by the plaintiff. Cook v. Doggett, 2 Allen, 439., and cases there cited.
Judgment for the plaintiff; damages to be assessed in the Superior Court.
