American Oil Co. v. Katsikas

• Decision Date: 17 August 1973
• Citation: 300 N.E.2d 204,1 Mass.App.Ct. 437
• Parties: AMERICAN OIL COMPANY v. Antonios KATSIKAS et al.
• Court: Appeals Court of Massachusetts

Page 204

300 N.E.2d 204

1 Mass.App.Ct. 437

AMERICAN OIL COMPANY v. Antonios KATSIKAS et al.

Appeals Court of Massachusetts, Middlesex.

Argued Dec. 18, 1972.

Decided Aug. 17, 1973.

James T. Curtis, Lowell (Glen B. Smith, Lowell, with him), for defendants.

Timothy H. Donohue, Boston (Bruce S. Gordon, Brookline, with him), for plaintiff.

Before ROSE, GOODMAN and ARMSTRONG, JJ.

ARMSTRONG, Justice.

This is a suit brought by the purchaser for specific performance of an agreement to sell land. From a final decree ordering specific performance, the defendants appeal. The evidence is reported.

The agreement, a two-page standard form of option agreement used by the plaintiff, along with a simultaneously executed three-page rider is dated July 3, 1967. By it the defendants Katsikas and Psoinos granted the plaintiff an option to purchase a parcel of land, adjacent to a shopping center, for $100,000, for use as a gasoline service station. The time during which the option could be exercised, after several written extensions, was fixed by the rider to end on June 30, 1968. On June 21, 1968, the plaintiff notified the defendants that it exercised the option.

The rider to the agreement was incorporated therein at the defendants' insistence. In part, it stated: 'Notwithstanding anything contained in said Option and in this Rider which is a part of said Option, it is agreed and understood by the Vendor and Purchaser that if said Option is exercised by the Purchaser and the closing shall not have occurred on or before October 11, 1968, ¹ this Agreement shall terminate and the parties shall have no further rights against each other either at law or in equity.'

The land which was the subject of this agreement, and which was specifically bounded and described therein, was a parcel with the frontage of 180 feet and a depth of 140 feet located at the southern corner of a parking lot serving a shopping center in the town of North Andover known as 'North Andover Mall.' It was to be conveyed 'subject to a thirty (30 ) foot (right of way) . . . along the southerly sideline . . ..' On September 9, 1968, the plaintiff showed the defendants ² a plan of its proposed gasoline service station layout which indicated that a curbing and plantings would block convenient vehicular access to the right of way. There was evidence to the effect that the defendants objected to the plan; that the parties thereupon worked out an alternate arrangement by which the description was to be changed to give the plaintiff thirty feet less frontage and thirty feet more depth; that the plaintiff was to draw up a new plan depicting the service station layout revised accordingly; and that the defendants were to prepare a new description to be incorporated in the deed and in the plaintiff's applications for required permits. There was no evidence of further communication between the parties from that time until November 4, 1968, when the plaintiff showed its revised service station layout plan to the defendants. At various times thereafter, and as late as 1940, the plaintiff sought the revised description from the defendants but failed to receive it. There was evidence that after October 11, 1968, the plaintiff was justified in thinking that the defendants intended to go through with a sale in accordance with the new terms worked out at the September 9, 1968, meeting.

The trial judge found 'that any delay in the closing . . . was caused by (the defendants)'; that 'at no time was any demand made upon the (plaintiff) . . . to close the conveyance . . . either on or before the closing date of October 11, 1968, or at any time subsequent thereto'; and that the plaintiff and the defendants 'orally agreed to extend the time for performance until after the (defendants) . . . prepared a modified description of the property to be conveyed, and that the (defendants) . . . suffered no prejudice by reason of the delay.'

An option contract for the purchase of land typically provides one terminal date for exercise of the option and another terminal date for closing. Unless the parties have otherwise agreed, the time for exercise of the option is generally considered to be of the essence, but the closing date is not. Boston & Worcester St. Ry. v. Rose, 194 Mass. 142, 149, 80 N.E. 498 (1907). Corbin, Contracts, § 273, pp. 599--600. Tender of performance on time may be made an express condition, however, and we are of the...