The case was heard on bill and answer. Rule 31 of the Superior Court (1932). Therefore all facts well pleaded in the answer, and all facts well pleaded in the bill and not denied or contradicted in the answer, are to be taken as true. Borggaard v. Department of Public Works,
The defendant Barrows is the treasurer of Haverhill, and the defendant Watson is its custodian of tax title property under St. 1938, c. 358, as amended by St. 1939, c. 123. and St. 1941, c. 296. In September, 1942, by the foreclosure of the right of redemption from a tax title the city acquired title to a lot of land with a camp on it at Chadwick’s Pond in Haverhill. On November 25, 1942, after the statutory preliminaries, the custodian conducted an auction sale of the property under the authority of the statutes cited, at which sale he was himself the auctioneer.
The plaintiff, whose wife as the former owner owed the city more than $400 in back taxes on the property, bid $100, which was “manifestly inadequate” but was the highest bid. That bid was not “accepted” by the auctioneer, the answer states, but he announced that the property was sold to the plaintiff, he accepted the required deposit of $25, and as auctioneer he gave the plaintiff a writing signed by him, a copy of which appears in a footnote.
On November 29, 1942, the defendant treasurer returned the deposit, stating that the price was considered insufficient, and that the least that would be accepted was $275. A tender of $100 by the plaintiff to the treasurer was refused. On December 7, 1942, the plaintiff brought this bill for specific performance against the city, the custodian, and the treasurer whose duty it is to give deeds to carry into effect sales made by the custodian. Parrotta v. Hederson,
It is possible that there was not complete realization of the technical effect of a hearing on bill and answer. But we must take the case on the facts as we have stated them. The plaintiff contends that the condition as to future confirmation was one not contemplated by the statute, and, since it was not contained in the notice of the sale, was void. See Parrotta v. Hederson,
That condition did not appear in the writing given by the auctioneer to the plaintiff. But that writing did not purport to be the contract. It was merely a memorandum of a contract made orally. The plaintiff cannot enforce the contract as its terms appear in the memorandum, if those terms differ from the terms of the oral contract actually made. Williston, Contracts (Rev. ed. 1936) §§ 567, 575. Wigmore, Evidence (3d ed. 1940) §§ 2429, 2430. Lubin v.
The custodian did not confirm the sale, but disaffirmed it. The bill should have been dismissed.
Final decree reversed.
Bill dismissed with costs.
Notes
“City of Haverhill, Massachusetts. Custodian of Tax Title Real Estate. November 25, 1942. Received of Ralph H. Taylor twenty five dollars ($25) as a deposit and to apply on the purchase price of the real estate at Chadwick’s Pond, Baker Street, Extension, as shown on Lakeside Plan, sold this day at public auction for one hundred . . . dollars ($100) that being the highest bid received.
The balance of seventy five dollars is payable on or before December 5,
[signed] Ralph H. Taylob
Purchaser
W. Watson
Auctioneer.”