Le Blanc v. Molloy

• Decision Date: 02 April 1957
• Citation: 141 N.E.2d 519,335 Mass. 636
• Parties: Romeo C. LE BLANC et al. v. William L. MOLLOY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 519

141 N.E.2d 519

335 Mass. 636

Romeo C. LE BLANC et al. v. William L. MOLLOY et al.

Supreme Judicial Court of Massachusetts, Worcester.

Argued March 5, 1957.

Decided April 2, 1957.

Albert E. Valliere, Leominster, for plaintiffs.

Isadore A. Solomon, Leominster, for defendants.

Before WILKINS, C. J., and RONAN, SPALDING, COUNIHAN and WHITTEMORE, JJ.

COUNIHAN, Justice.

This is a bill in equity in which the plaintiffs, who are husband and wife, seek specific performance of a contract whereby they agreed to buy and the defendants, who are husband and wife, agreed to sell certain real estate in Leominster owned by the defendants as tenants by the entirety. The suit comes here upon an appeal by the defendants from a final decree ordering the defendants to convey said real estate to the plaintiffs. There was no error.

The judge made a report of material facts and designated portions of the transcript of testimony as part of the record on appeal. Rule 2 of the Rules for the Regulation of Practice before the Full Court, 1952, 328 Mass. 693. Since such designated testimony is before us, it is our duty to examine it and decide the issues according to our judgment as to the facts and the law, giving due weight to the findings of the judge which will not be reversed unless plainly wrong. White Tower Management Corp. v. Taglino, 302 Mass. 453, 454, 19 N.E.2d 700, 121 A.L.R. 1158.

The findings and such designated testimony disclose that the parties entered into a purchase and sale agreement in writing on March 22, 1955. By its terms the property was to be conveyed on or before July 1, 1955. The plaintiffs paid the defendants a substantial deposit when the agreement was executed. Full possession of the premises was to be delivered to the plaintiffs on August 1, 1955. No place for the performance of the agreement was fixed in the agreement.

Late in June, 1955, the male defendant was notified by one Legros, the real estate broker in the transaction, that the conveyance would take place at the office of Mr. Baker, an attorney for the Worcester North Savings Institution, in the bank building in Fitchburg. This institution held an existing mortgage on the property which was to be discharged and it was to take a new mortgage from the plaintiffs. It is fair to infer from the evidence that the defendants, speaking through the male defendant, notified Legros that they would not be present at the time and place fixed for passing papers unless the plaintiffs agreed to extend the time for vacating the premises beyond August 1, 1955. The female defendant refused to accept a registered letter from Legros, addressed to her husband, notifying him of the time and place of the conveyance.

When the defendants failed to appear at the time and place fixed, Legros telephoned the female defendant and was told by her to call her husband. When Legros did so he was told by him that the defendants would not appear to complete the transaction unless the plaintiffs would grant an extension of the time to vacate. Later after July 1, 1955, the defendants returned a check for the deposit to the plaintiffs which they refused to accept.

The defendants argue that the plaintiffs had no right to designate the place for the performance of the agreement and that the defendants' failure to appear there did not constitute a repudiation of the contract. We do not agree. It is fair to infer from the evidence that the defendants were notified a day or two before...