Cole v. Hadley

• Decision Date: 03 January 1895
• Citation: 162 Mass. 579,39 N.E. 279
• Parties: COLE v. HADLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

162 Mass. 579

39 N.E. 279

COLE v. HADLEY.

Supreme Judicial Court of Massachusetts, Middlesex.

January 3, 1895

COUNSEL

Jerome H. Fiske, for plaintiff.

Dudley P. Bailey, for defendant.

OPINION

FIELD C.J.

This is an action of contract, to recover damages for the breach of an alleged agreement to lay out and construct, of the width of 35 feet, a certain private way in Everett, called "Ashton Street." We construe the alleged agreement to be an agreement to lay out and construct such a way for the use of the plaintiff in connection with the lot of land conveyed to him. The defendant conveyed to the plaintiff a lot of land by deed dated November 10, 1891, and delivered on or about July 26, 1892. The description of the land in the deed, so far as material, is as follows: "Beginning on Ashton street, so called, leading out of Ferry street at a point 110.9 feet distant northeasterly from the intersection of the southerly line of Ashton street with the northeasterly line of Ferry street; thence running northeasterly, by the southeasterly line of Ashton street, 50 feet; thence southeasterly, at right angles with Ashton street, 132.3 more or less, to land formerly of Oakes, now of Ellen Russell thence," etc. The defendant owned a strip of land 30 feet wide on the northwesterly front of the lot conveyed extending to Ferry street, but beyond this 30-foot strip the land belonged to other persons. The defendant testified "that he agreed to grade down the said street called 'Ashton Street,' and to give a strip of land thirty feet wide for the same, but did not agree to build the same of any specified width"; and he offered evidence that he had graded the street to about the grade of Ferry street, making excavations in some places of 10 feet in depth, and had wrought the way "so that, allowing for the slope of the bank, the width of the traveled part of the way varied, when complete, from about twenty-five to twenty-eight feet between the plaintiff's lot and Ferry street." The plaintiff testified that the defendant agreed "to put in a street thirty-five feet wide," and offered evidence that the way which had been built was "about the same as a pasture or potato bed." There was no written agreement or memorandum in relation to the laying out or building of the street, except the description of the land in the deed, which has been quoted. The width of Ashton street was not given in the deed, and there was no reference to any plan or to the street, except in the description of the lot of land. The plaintiff testified that when the agreement was made there was no street, but simply a field or pasture. When the deed was delivered, the street, apparently, had been sufficiently wrought to define its width on the ground.

The...