213 Mass. 122 | Mass. | 1912
This is a bill in equity to compel specific performance by the defendant of the following agreement under seal:
“ Witness James W. Canady. (Seal.) ”
The case was duly heard and a decree
It appeared that shortly after the defendant signed the agreement he attempted to revoke the offer contained in it by means of the following letter which was sent by him to and received by the plaintiff:
“Spencer, Mar. 17th, 1910.
“Mr. Rice
“Dear Sir I give you notice that I do hereby revoke my offer to sell to you my farm in Spencer. You don’t agree to buy it nor. do you give me a penny or other thing to hold it until you find out whether you want it or not and at the last moment you can tell me you don’t want it and I lose other customers. That is not fair or right.
“ Yours
“J. W. Canady.”
The letter appears to be dated 1910, but that is obviously a mistake for 1911. The judge found that the attempted revocation contained in this letter was abandoned and given up by the defendant some time about April 1, 1911. The facts found by the judge warranted such a finding. What was found by the judge was that “Sometime about April 1, .1911, at the request of the plaintiff, the defendant went to the office of the plaintiff’s attorney,
The offer made by the defendant required the plaintiff to tender on or before April 10 the amount for which the defendant agreed to sell and convey the farm. What took place in the office of the plaintiff’s attorney plainly did not constitute a tender, and the judge found that “The plaintiff thereafter, before the bringing of this bill, never made demand upon the defendant for a deed of the premises, nor tendered nor offered to tender the price to be paid for such conveyance.” The time named in the offer was of the essence of the agreement made by the defendant, and even if what took place in the attorney’s office could be construed as an acceptance by the plaintiff of the defendant’s offer the plaintiff was bound to tender performance on its part before the expiration of the time named, in order to entitle itself to a conveyance of the farm. As already observed, it is clear that what took place in the attorney’s office did not constitute a tender, and it is expressly found that thereafter, before the bringing of the bill, the plaintiff made no demand for a deed and did not offer to pay the price required for a conveyance.
There was no such refusal to convey on the part of the defendant as to dispense with a tender. Mengis v. Carson, 114 Mass. 410. The attempted withdrawal of the offer was abandoned, not only without objection so far as appears on the
Decree affirmed with costs of appeal.
The case was submitted on briefs.
Made by Pierce, J.