Brooks v. Yawkey

• Decision Date: 07 January 1953
• Docket Number: No. 4645.,4645.
• Citation: 200 F.2d 663
• Parties: BROOKS v. YAWKEY et al.
• Court: U.S. Court of Appeals — First Circuit

200 F.2d 663 (1953)

BROOKS v. YAWKEY et al.

No. 4645.

United States Court of Appeals, First Circuit.

January 7, 1953.

Michael F. Helfgott, New York City (Roger B. Brooks, Boston, Mass., on the brief), for appellant.

John T. Hayes, Boston, Mass. (Schuyler Hollinsworth and Bingham, Dana & Gould, Boston, Mass., on the brief), for appellees.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

WOODBURY, Circuit Judge.

This is an appeal from a summary judgment entered under Rule 56, Fed. Rules Civ.Proc. 28 U.S.C.A., dismissing an action seeking money damages for breach of an agreement to sell and convey approximately 200 acres of land in the City of Windsor, Province of Ontario, Canada. There is no doubt that the value of the matter in controversy exclusive of interest and costs is well over $3,000. But it is alleged in the complaint that the plaintiff-appellant's decedent at the time he brought this action about a year before his death was a "resident" of Michigan, and that the defendants are "residents" of Massachusetts. Clearly these are insufficient allegations of diversity of "citizenship" necessary for federal jurisdiction under Title 28 U.S.C. § 1332(a)(1). However, it appears so probable that in actual fact the requisite diversity of citizenship of the parties existed that we feel warranted in discussing the merits of this appeal forthwith. Cf. Keene Lumber Co. v. Leventhal, 1 Cir., 1948, 165 F.2d 815. Nevertheless, we cannot pass over the point because federal jurisdiction cannot be assumed but must be clearly shown. We shall, therefore, allow 10 days from the date of this opinion for the filing in this court of a motion under Title 28 U.S.C. § 1653 for leave to amend, which, if not filed and allowed, will necessitate dismissal of the complaint for lack of jurisdiction.

There is no dispute as to the following basic facts.

On February 9, 1948, an agent for the defendants gave the plaintiff's decedent an option to purchase the Canadian real property involved for $160,000. The option was for 90 days, with provision for its extension for an additional six months upon payment of $16,000. It was executed and delivered in New York, it was renewable in New York, and it was to be exercised there. During the original 90 days term of the option, on April 12, 1948, the Hydro Electric Power Commission of the Province of Ontario expropriated approximately 85 acres, or about 40%, of the tract including its frontage on the Detroit River which was its most valuable part. On the day of the expropriation the defendants, through an attorney, notified the plaintiff's decedent that his unexercised option was revoked. Nevertheless the plaintiff's decedent on April 20, 1948, tendered the defendants in New York the sum of $16,000 to extend the option for the additional six months period. His tender was refused, but in spite of the refusal, on October 20 and on October 21, 1948, treating the option as still in force, he purported to exercise it, and on November 1 he called at the defendants' New York office and asked for a closing date for transfer of the title to the property. When he did so, however, he was told by the man in charge of the defendants' office that since there was no title to transfer there was no need to fix a closing date.

On these facts the court below granted defendants' motion for summary judgment which was based upon the proposition that under the law of the State of New York the option became a nullity on April 12, 1948, and the defendants were therefore absolved from any liability under it, for the reason that the expropriation of part of the land involved by the Hydro Electric Power Commission on that date made it impossible for them to perform their option agreement should they ever be called upon to do so.

Counsel on both sides concede that the law of the State of New York applies for the reason that the option was executed and delivered in that state and was to be exercised there. While it may not be absolutely certain that the Massachusetts courts would look to the law of New York rather than to the law of Ontario for the solution of the question presented, it appears to us so probable that Massachusetts would apply New York law that we feel justfied in honoring the concession of counsel and applying the law of New York.

The plaintiff's action rests upon the proposition that the decedent did all that the defendants permitted him to do to exercise the option in conformity with its terms, and that this action on his part had the effect of creating a valid and binding contract of purchase and sale of the land which the defendants were legally obliged to perform by conveying the land remaining after...