Cashman v. Bean

• Decision Date: 02 March 1917
• Parties: CASHMAN v. BEAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

226 Mass. 198

115 N.E. 574

CASHMAN

v.BEAN et al.

Supreme Judicial Court of Massachusetts, Essex.

March 2, 1917.

Appeal from Superior Court, Essex County; William Cushing Wait, Judge.

Suit by John Cashman against Dummer B. Bean and others to enforce specific performance of a contract for the sale of land described as ‘having a frontage of about 60 feet more or less' on a certain street, etc. From a decree dismissing the bill, plaintiff appeals. Reversed.

W. Scott Peters and Harry J. Cole, both of Haverhill, Fred H. Magison, of Boston, and Wilbert F. Barrett, of Haverhill, for appellant.

Poor & Abbott, of Haverhill, for appellees.

BRALEY, J.

[1][2] The plaintiff as assignee can maintain the bill in his own name, and as he asks for specific performance of the contract which a court of equity only can grant, the remedy at law for money damages is neither adequate nor complete, even if relief in both forms may be concurrently sought in one suit. Pingree v. Coffin, 12 Gray, 288;Connihan v. Thompson, 111 Mass. 270;Seymour v. Freer, 8 Wall. 202, 19 L. Ed. 306.

[3] It also is unnecessary to allege that the purchaser was induced to enter into the contract and to accept its terms through any material misrepresentations of the defendants. The suit is founded on affirmance of the contract as set forth in the bill where no allegations of mutual mistake, with prayers for its reformation and enforcement of the contract as reformed are found. Glass v. Hulbert, 102 Mass. 24, 3 Am. Rep. 418;Quincy v. Chute, 156 Mass. 189, 30 N. E. 550. But if these several objections of the demurrants disappear and on the record the contract even if not signed by the purchaser can be enforced, there remains the final defense, that no case is stated for equitable relief. Old Colony R. R. Corp. v. Evans, 6 Gray, 25, 31, 32, 66 Am. Dec. 394.

[4] We shall refer to the plaintiff as the purchaser, who apparently having acted in good faith and being able and willing to perform is entitled to have the agreement specifically enforced in so far as the defendants are able, with a deduction from the purchase price for any deficiency in title or of quantity or of quality of the designated estate. Pingree v. Coffin, 12 Gray, 288, 316;Woodbury v. Luddy, 14 Allen, 1, 92 Am. Dec. 731;Davis v. Parker, 14 Allen, 94, 98;Kares v. Covell, 180 Mass. 206, 62 N. E. 244,91 Am. St. Rep. 271;Mansfield v. Wiles, 221 Mass. 75, 108 N. E. 901;King v. Connors, 222 Mass. 262, 110 N. E. 289;Townsend v. Vanderwerker, 160 U. S. 171, 16 Sup. Ct. 258, 40 L. Ed. 383; Burrow v. Scammell, 19 Ch. Div. 175.

The demurrer having admitted all the essential allegations of the bill it must be assumed that there is a discrepancy between the dimensions of the property as described in the contract, and as shown by the measurements of the engineer employed by the plaintiff to make a survey, the most important of which is the variance in frontage on the street where the property abuts. The plaintiff, however, is bound by the description, and cannot require from the vendors a greater estate than that which they agreed to convey.

It plainly appears from an examination that the length of the boundary lines is controlled by their termini or monuments, consisting of the alleyway, the river, and the street, which are to be taken as delimiting the courses and distances to which the estimates must yield, if any discrepancy appears upon application of the description to the premises. Temple v. Benson, 213 Mass. 128, 132, 100 N. E. 63.

It also is settled that the words ‘more or less' used by the parties in stating the frontage on the street, control the statement as to the length of the street line or boundary, as well as its effect when ascertaining the quantity of land for which the purchaser bargained. Noble v. Googins, 99 Mass. 231;Pingree v. Co. Commissioners, 102 Mass. 76;Tarbel v. Bowman, 103 Mass. 341, 344;Lovejoy v. Lovett, 124 Mass. 270, 273;Flagg v. Mason, 141 Mass. 64, 66, 6 N. E. 702;Hodges v. Knowing, 58 Conn. 12, 18 Atl. 979,7 L. R. A. 87;Tyson v. Hardesty, 29 Md. 305.

If upon measurement the frontage had exceeded the estimate the plaintiff would have been entitled to a conveyance without any enhancement of the purchase price, and if there is a deficiency of substantially seven feet, the shortage does not correspondingly abate the price, or raise any presumption of fraud. Noble v. Googins, 99 Mass. 231, 235;Stebbins v. Eddy, 4 Mason, 414, 421, Fed. Cas. No. 13,342; Frederick v. Youngblood, 19 Ala. 680, 54 Am. Dec. 209. The plaintiff accordingly is not entitled to compensation for any deficiency in area.

The contract having further provided that upon payment of the balance of the purchase price the defendants are to pass the title by delivery ‘of a warranty deed free and clear of all incumbrances' except certain outstanding mortgages and leases which are specifically named, they are bound to convey a good marketable title. Davis v. Parker, 14 Allen, 94;Linton v. Allen, 147 Mass. 231, 17 N. E. 523; Id., 154 Mass. 432, 28 N. E. 780;French v. Folsom, 181 Mass. 484, 63 N. E. 938;Foster, Hall & Adams Co. v. Sayles, 213 Mass. 319, 321, 100 N. E. 644.

It is aptly alleged that the premises are subject to other valid easements comprising a party wall and a passageway, the existence of which incumbers the title and depreciates the value of the...