Applegate v. Nager

• Decision Date: 27 June 1934
• Citation: 191 N.E. 354,287 Mass. 188
• Parties: APPLEGATE v. NAGER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

287 Mass. 188

191 N.E. 354

APPLEGATE

v.NAGER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 27, 1934.

Appeal from Superior Court, Suffolk County; Weed, Judge.

Suit in equity by Mary E. Applegate against Robert Nager and others. From the final decree, plaintiff appeals.

Affirmed.

M. H. Sullivan, of Boston, for appellant.

M. Reiser, of Boston, for appellees.

CROSBY, Justice.

This suit in equity is brought to compel specific performance by the defendant Nager of an alleged written agreement for the sale and purchase of certain real estate, and for damages for Nager's failure so to convey.

The agreement relied on by the plaintiff contained among other provisions the following: ‘In consideration of the above Sarah Nager wife of the said Robert Nager, hereby agrees to join in the Deed to be made aforesaid and to release to the party of the second part all right of dower and homestead in said premises.’ The trial judge filed a report of material facts and an order for a decree. He found that the defendant Nager owned the house in issue at 30 Centre street, Dorchester, in the fall of 1933, and renovated it and desired to sell it; that the plaintiff and her husband, through one O'Brien, a broker, entered into negotiations with Nager to exchange property of the plaintiff for that of Nager; that an agreement was prepared in duplicate and each copy was signed by Nager, and the plaintiff and her husband; that the plaintiff paid Nager $150 as stipulated in the agreement; that Mrs. Nager was not present and Nager promised to have her sign the agreement that night and to bring it to the plaintiff the next day and exchange it for the copy retained by the plaintiff; that Mrs. Nager refused to sign the agreement and Nager did not see the plaintiff again until after this suit was begun; that he called O'Brien the next day and told him his wife had refused to sign, but if they waited a few days perhaps she would do so; that at a later time Nager entered into an agreement to sell the property to the defendants McLaughlin which was assented to by Nager's wife; and that she was not bound by the agreement made with the plaintiff. The judge states: The agreement with the plaintiff ‘while in terms between Nager and the plaintiff called for the signatures of Mrs. Nager and Mr. Applegate for the express purpose of releasing all their respective rights in the properties to be traded. The written agreements were signed by all but Mrs. Nager. One copy was then retained by each of the principal parties, with the express...