Dennett v. Norwood Hous. Ass'n, Inc.

• Decision Date: 15 June 1922
• Citation: Dennett v. Norwood Hous. Ass'n, Inc., 241 Mass. 516, 135 N.E. 866 (Mass. 1922)
• Parties: DENNETT v. NORWOOD HOUSING ASS'N, Inc.
• Court: Supreme Judicial Court of Massachusetts

241 Mass. 516

135 N.E. 866

DENNETT

v.NORWOOD HOUSING ASS'N, Inc.

Supreme Judicial Court of Massachusetts, Norfolk.

June 15, 1922.

Appeal from Superior Court, Norfolk County.

Suit by Phillips Dennett against the Norwoood Housing Association, Inc., for specific performance of a contract for the sale of land. From a decree for plaintiff, defendant appeals. Affirmed.

Oveson, Halloran, Burnham & Draper, Raymond H. Oveson, and Daniel W. Donahue, all of Boston, for appellant.

Edward O. Proctor, of Boston (Sherman L. Whipple, of Boston, of counsel), for appellee.

BRALEY, J.

This is a bill in equity for specific performance by the vendor of the following contract:

‘This agreement, made this 1st day of April, 1919, between the Norwood Housing Association and Phillips Dennett, of Norwood, whereby the said Housing Association agrees to sell and said Dennett to purchase a certain parcel of land situated on the westerly side of Bond street in Norwood with the buildings thereon, being numbered 78 on said street, and being the same lot as purchased from Carroll W. Morse, executor, together with a triangular piece of land in the rear of said lot taken from the Chickering field, so called, which will give an added depth of not more than 25 feet to the depth of the Bond street lot on the property line between said lot and property of George H. Morrill.

‘The purchase price is to be ten thousand dollars ($10,000) and the said Dennett agrees to assume the taxes for the year 1918, and also the cost of surveying the plot and making plans of the same.

‘This transfer is to be made subject to the ability of the Housing Association to give said Dennett a clear and satisfactory title, free from all incumbrances.

‘Papers to be passed on or about May 1, 1919, and the said Housing Association acknowledge receipt of one hundred dollars ($100) hereby to bind the purchase and to be a part of the purchase price.

‘Witness our hands and seals this 1st day of April, 1919.’

The defendant's original answer, after admitting the execution of the contract by its vice president, whose authority to bind the corporation has not been raised or argued, admits:

‘That in April, 1919, and for a long time thereafter, the corporation was controlled by its treasurer, Joseph O. Proctor, Jr., and that in November, 1919, the control passed from said Joseph O. Proctor, Jr., to the present board of directors, representing both the creditors and the stockholders of said corporation, and that upon the assuming of control by the present board of directors said board of directors was informed of the existence of said written paper heretofore referred to. Said board of directors was informed by the president of the corporation, who was president in April, 1919, when said paper was signed, and is still president of the corporation, that said paper was signed contrary to his orders and that the vice president signing the same had no authority to bind the corporation. The defendant corporation desires to fulfill its legal obligations and does not desire to take advantage of any technicality in its own favor, and it has made an effort to reach a compromise with the plaintiff, which would be satisfactory to the plaintiff and to the president of the defendant corporation. No such agreement has been found possible.

‘Further answering, the defendant says that on April 1, 1919, and ever since, there has been outstanding a first mortgage upon most of the land owned by the defendant corporation and covering a large portion of the land mentioned in said agreement and that said mortgage was held by the Boston Safe Deposit & Trust Company as trustee, and that releases therefrom could not be obtained from April 1, 1919, until after control of the corporation had been assumed by the present board of directors in November, 1919, and then only upon the payment of the full value of the property released to the holder of the mortgage, but that such release can now be obtained by the payment of $9,500 to said holder of said first mortgage.

‘This defendant therefore submits the question of the rights of the plaintiff to the court and asserts its desire to fulfill any legal obligations which it may be found to have incurred toward the plaintiff.’

By an amendment the defendant further answered that:

‘Since the bringing of the plaintiff's suit and after the filing of defendant's original answer the president of the defendant corporation, without the knowledge or consent of the majority of the directors of said corporation, has taken such action as to cause the appraisal which had heretofore been made of the property mentioned in the plaintiff's bill of complaint which was covered by said bond mortgage to be withdrawn, and has made, or caused to be made, statements to the trustee under said bond mortgage as to the value of said property, which has given the impression to said trustee that said property to be released is worth greatly in excess of $9,500, so that at the present time the defendant has no knowledge as to what sum would be required by said trustee under said bond mortgage in order to release said property, and it therefore appears that at the present time said property, so far as covered by said bond mortgage, can be released only in such manner as is provided in said bond mortgage for releases therefrom.’

[2] It is settled that, unless expressly stipulated, time is not of the essence of a contract to buy and sell land (Mansfield v. Wiles, 221 Mass. 75, 81, 82, 108 N. E. 901, 903), and the present suit, which...