C. & W. Dyeing & Cleaning Co. v. DeQuattro

• Decision Date: 11 July 1962
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: C. & W. DYEING AND CLEANING CO., Inc. v. Mary M. DeQUATTRO.

Page 61

184 N.E.2d 61

344 Mass. 739

C. & W. DYEING AND CLEANING CO., Inc. v. Mary M. DeQUATTRO.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued May 16, 1962.

Decided July 11, 1962.

Lewis H. Miller, Brockton (David Silverstein, Brockton, with him), for plaintiff.

Frederick H. Balboni, Brockton, for defendant.

Before WILKINS, C. J., and SPALDING, CUTTER, KIRK, and SPIEGEL, JJ.

KIRK, Justice.

The plaintiff has appealed from a final decree dismissing its bill in equity for the specific performance of a contract for the sale of land owned by the defendant. The case is before us on a statutory report of material facts. The evidence is not reported. ¹ We therefore accept the reported findings as true, unless mutually inconsistent. Sturnick v. Watson, 336 Mass. 139, 143, 142 N.E.2d 896. The question is whether on the findings reported the decree was rightly entered. Jose v. Lyman, 316 Mass. 271, 277, 55 N.E.2d 433, 154 A.L.R. 190, and cases cited. Cross v. Cross, 324 Mass. 186, 188, 85 N.E.2d 325.

The plaintiff is the present occupant of the locus under a lease originally executed between one Weiner as lessee and the defendant as lessor, and assigned at the commencement of the term by Weiner to the plaintiff with the defendant's consent. The lease is for a ten year period beginning on September 1, 1954, and ending on August 31, 1964.

Paragraph seven of the lease provides: 'The Lessor agrees that if the Lessee within five years from the commencement of the term hereby created shall give to the Lessor two months notice in writing that he desires to purchase the premises herein described for the sum of $23,000.00, the Lessor on or before the expiration of such notice will convey * * * the demised premises to the Lessee * * * the said $23,000.00 to be payable as follows: $5,000.00 in cash and $18,000.00 by a promissory note of the Lessee secured by a first mortgage on the demised premises * * *.'

On June 24, 1959, the plaintiff sent the following letter to the defendant: 'Please be advised that the undersigned [plaintiff], assignee of the lessee * * * hereby desires to exercise the option to purchase the * * * property described in * * * lease in accordance with the terms and provisions as stated therein.

'This notice is sent to you as required by the terms of said lease containing the option to purchase said property. * * *'

The judge found that '[o]n August 22, 1959, the plaintiff informed the defendant that it was unable to raise the $5,000.00 cash that was called for by the option and asked the defendant to extend the time for one year on the payment of $500.00.' This was refused. Another such request was made by the plaintiff and rejected by the defendant on August 23, 1959.

On August 31, 1959, the plaintiff's counsel informed the defendant that he believed that he could have the necessary cash available on the following day. On September 1, 1959, the plaintiff's representatives, including its counsel, and one Kovey, a mortgage broker, came to the place of business of the defendant's husband, who was acting as the defendant's agent in this transaction. The defendant's husband was notified at this time that the plaintiff wished 'to exercise its option to buy.' The defendant's husband told the plaintiff's representatives that the option had expired on the previous day and that the defendant did not intend to convey the property.

The judge found that the plaintiff 'was not ready or able to exercise the option' on September 1, 1959.

The plaintiff contends that this finding tends to confuse 'the exercise of the option to purchase with the consummation of the contract to buy and sell land which came into being when the option was exercised.' Paragraph seven of the lease, as we interpret it (Shayeb v. Holland, 321 Mass. 429, 431, 73 N.E.2d 731. POWERS, INC. V. THE WAYSIDE, INC. OF FALMOUTH, MASS., 180 N.E.2D 677),² constituted an irrevocable offer by the defendant to convey the demised premises to the plaintiff for the stated price if, not later than two months before the expiration of five years from the commencement of the lease, the plaintiff notified the defendant that it desired to purchase the premises. By its letter of June 24, 1959, the plaintiff complied with the conditions of, and duly accepted, the defendant's offer. Thereupon there came into effect a bilateral contract between the plaintiff and the defendant for the purchase and sale of the premises. Rigs v. Sokol, 318 Mass. 337, 344, 61 N.E.2d 538. See Nichols v. Sanborn, 320 Mass. 436, 438, 70 N.E.2d 1. This contract was to be performed 'on or before the expiration of [the two months'] notice.' Thus, assuming that the defendant received the notice on June 24, 1959, the sale was to be consummated by August 24, 1959. ³

The plaintiff, relying on the rule that 'in equity time is not of the essence of a contract to convey land, unless made so by the contract or by circumstances that would make a belated enforcement inequitable,' (Gevalt v. Diwoky, 319 Mass. 715, 716, 67 N.E.2d 481, 482, and cases cited), contends that it had a reasonable time after August 24, 1959, to tender its performance. This general rule, however, does not avail the plaintiff on the facts here disclosed. Both from the language of the option provision in the lease and from the construction placed on it by the parties, as evidenced by their conduct as September 1, 1959, approached (Atwood v. Boston, 310 Mass. 70, 75, 37 N.E.2d 131, and cases cited; see Restatement: Contracts, § 235 [e]; Williston, Contracts [3d ed.] § 623), we are of opinion that it was the intention of the parties that, regardless of when the...