Barrell v. Britton
| Decision Date | 22 May 1925 |
| Citation | 148 N.E. 134,252 Mass. 504 |
| Parties | BARRELL v. BRITTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior Court, Norfolk County; Franklin T. Hammond, Judge.
Bill in equity by Walter L. Barrell against Olive H. Britton, to compel defendant to convey to plaintiff certain real estate and enjoin defendant from bringing proceedings to deprive plaintiff of possession and to reform certain sale agreement. On report after order for interlocutory decree granting partial relief. Bill dismissed.
W. R. Bigelow, of Boston, for plaintiff.
Hugh W. Ogden and D. A. Rollins, both of Boston, for defendant.
This is a bill in equity which, as amended, prays that the defendant be ordered to convey to the plaintiff certain real estate in Brookline; that the defendant be enjoined from bringing any proceedings to deprive the plaintiff of possession of the real estate; and that a certain written agreement for the sale of the premises, entered into by the parties, by which the defendant was to sell and the plaintiff to purchase, be reformed to conform to the actual agreement entered into by them.
A somewhat similar suit between the same parties was considered in 244 Mass. 273, 138 N. E. 579, 28 A. L. R. 1065, and a final decree for the plaintiff, entered in the superior court, was reversed. Many of the allegations in the present bill are identical with those contained in the previous suit, the substantial difference being the addition by amendment of paragraph twelve and the prayers thereunder. Paragraph twelve is as follows:
‘The plaintiff further says that it was part of the original agreement entered into between the plaintiff and the defendant through her agent said Russell, that the plaintiff should occupy and have a right to occupy said premises during the time that he continued to make the payments required by said written agreement, but that by inadvertence and mistake this provision was not clearly set out in said written agreement.’
The first three allegations in the amendment are admitted by the defendant; the fourth (paragraph twelve above referred to) being the only other allegation in the amendment.
The plaintiff, after rescript in the first case, moved to amend his bill in the superior court by setting up the allegations contained in the amendment. This motion was denied.
In August, 1923, and after the previous decision, the defendant brought a writ of entry in the land court to recover possession of the premises, and damages for the alleged wrongful withholding by the plaintiff of such possession after May 18, 1922, on which date he was notified to vacate. This case is still pending. The rights of the parties depend upon the terms of the agreement, which is fully set forth in the opinion in the previous case. No reference was made in that agreement to who should pay the taxes or insurance on the premises, nor is there any statement therein as to who was entitled to occupy the premises before the deed should be delivered.
The bill alleges in the sixth paragraph that the plaintiff offered to pay the defendant the sum of $1,500 on July 1, 1923, on account of the purchase price and that the plaintiff requested the defendant to execute and deliver to him a deed. If such payment had been tendered and accepted by the defendant, the plaintiff would have paid altogether on account of the purchase price the sum of $5,000, which would have entitled him to a deed in accordance with the agreement, provided he had complied with all other terms therein stated. But such a payment not being due at that time, the defendant was under no obligation to receive it. It was an offer to anticipate payments which, under the agreement, would not become due until a future date. Saunders v. Frost, 5 Pick. 259, 266,16 Am. Dec. 394;Gordon v. Ware Savings Bank, 115 Mass. 588;Silva v. Turner, 166 Mass. 407, 411, 44 N. E. 532.
[2] At the time when the bill was filed on July 2, 1923, and the amendment thereto in November of the same year, the plaintiff was not entitled to anticipate payments which under the agreement would not become due until October, 1924. In that month he was required to pay the sum of $250 on account of principal; this would have made the amount paid on account of principal $5,000, and he would then have been entitled to a deed, provided he had performed all the other terms of the agreement.
The trial judge rightly ruled that he was not entitled to a decree for specific performance, but found that he was entitled to a decree for the reformation of the written agreement in accordance with the oral agreement of the parties, as set forth in the twelfth paragraph of the amended bill.
Upon this question the presiding judge in a ‘memorandum and order for decree’ made the following finding:
‘It seems to me clear from all the evidence in the case that it was tacitly understood between the defendant's agent and the plaintiff that the plaintiff should have the right of possession of the premises so long as he should continue to pay the installments of the purchase price and the interest on the deferred payments, and I find that such was the real understanding and agreement of the parties, but that by inadvertence it was omitted from the written agreement.’
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