Brown v. Davis
| Decision Date | 10 January 1885 |
| Parties | Francis C. Brown v. Nathan J. Davis |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued November 18, 1884.
Middlesex.
Contract for the breach of a written agreement, executed on February 3, 1882, by the terms of which the defendant agreed to sell and the plaintiff agreed to buy, certain real estate in Somerville, "the same to be conveyed by a good and sufficient deed of the said Nathan J. Davis, as executor of the estate of Cyrus B. Rowe, conveying a good and clear title to the same, free from all incumbrances; and for such deed and conveyance" the plaintiff was to pay a certain sum "in four months from the date hereof."
Trial in the Superior Court, before Rockwell, J., who allowed a bill of exceptions, in substance as follows:
It was admitted that the defendant, at the time of the execution of said agreement, was the executor of the will of Cyrus B Rowe, deceased; that at that time the premises described in said agreement belonged to the estate of said Rowe; that the defendant, as executor, on October 3, 1882, obtained a license from the Probate Court to sell said real estate by public auction for the payment of the debts of the testator and that the defendant, as executor, under the license, sold the real estate by public auction to one Shedd, on October 21, 1882.
The plaintiff testified, that the defendant told him, when the contract was executed, that he could give him a good title to the premises; that the plaintiff took possession of the premises under the contract, and made repairs and additions amounting to $ 407; that during the month of May, 1882, the plaintiff made arrangements with one Richards for a loan of the sum of money necessary to enable him perform his part of the contract; that Richards agreed to lend the necessary amount, provided the defendant could give the plaintiff a good title to the premises; that thereupon, in said May, the plaintiff told the defendant that he could get the necessary amount of money from Richards, if the defendant could give the plaintiff a good title; that, on October 7, 1882, after the defendant, as executor, had obtained said license to sell the premises, the plaintiff, accompanied by Richards and another person, went to the defendant and told him that he had come to take up his obligation, if he could have the deed; and that the defendant answered that he had sold the property to another party.
On cross-examination, the plaintiff testified, as to said interview,
The plaintiff admitted that no formal tender was ever made by him.
The defendant asked the judge to rule that the plaintiff could not maintain this action, because a legal tender was not made within said term of four months.
The plaintiff contended that, as, by the terms of the contract payment by him was to be made for delivery of a good and sufficient deed, the fact that such delivery by the...
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