Burke v. Schreiber

• Decision Date: 26 February 1903
• Citation: Burke v. Schreiber, 183 Mass. 35, 66 N.E. 411 (Mass. 1903)
• Parties: BURKE et al. v. SCHREIBER.
• Court: Supreme Judicial Court of Massachusetts Supreme Court

183 Mass. 35

66 N.E. 411

BURKE et al. v. SCHREIBER.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1903

COUNSEL

John

J. Scott for plaintiffs.

Morse & Friedman, for defendant.

OPINION

KNOWLTON C.J.

There is no dispute that, by the terms of her contract, the defendant was bound to give the plaintiffs a deed which would convey a good title. The time for the delivery of the deed and the payment of the balance of the price was extended three times, for a period of 12 days in all, and on the last day appointed it appeared that there was an attachment upon the property which was outstanding and undischarged. The defendant's attorney submitted a paper of recent date which purported to release the attachment signed by the attorney of record of the attaching creditor. The attaching creditor had deceased nearly four months before, and no administrator had been appointed. The plaintiffs then declined to accept the deed tendered by the defendant, and declined the defendant's offer to procure a discharge of the attachment as soon as possible. They bring this action, not to recover damages for the breach of the defendant's contract, but to recover back a part of the purchase money previously advanced at the time of the auction sale.

The plaintiffs were not bound either to accept the deed while there was an incumbrance on the property, or to wait to see whether the defendant would procure a release of the attachment after the appointment of an administrator or give a bond, with sureties, to dissolve the attachment. The defendant was unable to perform her contract according to its terms, and the plaintiffs, insisting on a performance had a right to rescind it and recover back their payment, as money had and received to their use. They were not obliged to tender performance, or to make a formal offer of performance. The inability of the defendant to perform gave them a right to...