Cobuzzi v. Parks

• Decision Date: 10 December 1943
• Citation: 315 Mass. 199,51 N.E.2d 965
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: ANTHONY COBUZZI v. FRANK K. PARKS & another.

315 Mass. 199

51 N.E.2d 965

ANTHONY COBUZZI v. FRANK K. PARKS & another.

Supreme Judicial Court of Massachusetts, Middlesex.

December 10, 1943

October 6, 1943.

Present: FIELD, C.

J., LUMMUS, DOLAN COX, & RONAN, JJ.

Contract, For the sale of real estate, Performance and breach. Tender. Equity Jurisdiction, Specific performance. Real Property, Tenancy by the entirety. Tenants by the Entirety. Husband and Wife. Agency, What constitutes. Equity Pleading and Practice Decree.

A statement made by the seller to the buyer under a contract for the sale of real estate, that he was "not going through with the transaction," would excuse the buyer from the necessity of tendering payment of a balance due on the purchase price as a preliminary to enforcing the contract.

Evidence warranted a finding that, in conduct of a husband and his wife relative to a sale of real estate owned by them as tenants by the entirety, each acted both in his or her individual capacity and also as an authorized agent of the other. One spouse may be an agent of the other.

A decree in equity ordering specific performance by the seller of a contract for the sale of real estate, under which the buyer was to assume and agree to pay an outstanding mortgage on the property as part of the purchase price and was to pay the balance of the price to the seller, should not have provided for such payment by the buyer by "bank check or cash," but only in cash, and should have provided that in the conveyance which the seller was ordered to make the buyer should assume and agree to pay the mortgage.

BILL IN EQUITY filed in the Superior Court on April 28, 1942. The suit was heard by Morton, J.

W. M. Kerwin, for the defendants. A. M. Cicchetti, for the plaintiff, submitted a brief.

DOLAN, J. This is a bill in equity against the defendants Frank K. Parks and his wife, Mae H. Parks, seeking specific performance of an agreement for the purchase and sale of certain real estate. The evidence is reported, and the judge, after making a report of all the material facts, ordered that a decree be entered directing the defendants to deliver to the plaintiff a quitclaim deed of the premises in question "upon the tender or delivery to the defendants of a bank check or cash for $1,980, and for costs." A final decree was entered accordingly from which the defendants appealed.

Material facts found by the judge follow. The defendants are the owners of the premises involved as tenants by the entirety. On April 17, 1942, the plaintiff saw the premises. There was a sign in the window of the house reading "For Sale." He entered the house and conferred with the defendants relative to its sale. Finally the defendants "entered into an oral agreement for the purchase and sale thereof for the sum of $2,000, the purchase price being $6,500, there being a first mortgage of $4,500 outstanding thereon. After the oral agreement was made, the defendants requested a deposit, and all the plaintiff had at the time was $20, which was paid to the defendants." A written memorandum was signed at that time in terms as follows: "April 17, 1942 Received from Anthony Cobuzzi Received deposit of $20.00 to apply on sale of house at 448 Concord Turnpike, Arlington, Mass., balance of $1980. to be paid April 18, 1942. Buyer will forfeit deposit of $20.00 paid April 17th, 1942 if balance of $1980 is not paid April 18, 1942. (signed) FRANK K. PARKS." The defendant Frank signed this agreement at the request of his wife, the defendant Mae H. Parks, "in both his personal capacity and as agent for his wife." (The defence of the statute of frauds was not set up in the answer of the defendants.) On the following morning (April 18) an attorney for the plaintiff "called" the defendants and requested the name of their attorney to secure information with reference to the title to the premises. The defendant Mae talked with him but refused to give the name of the attorney, saying that "they were not going through with the transaction as they were advised they...