Eastman v. Simpson

• Decision Date: 31 May 1885
• Citation: 1 N.E. 346,139 Mass. 348
• Parties: EASTMAN and others v. SIMPSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

139 Mass. 348

1 N.E. 346

EASTMAN and others

v.SIMPSON.

Supreme Judicial Court of Massachusetts.

Filed May, 1885.

Mr. Caverly, for plaintiffs.

D. & C.G. Saunders, for defendant.

HOLMES, J.

This is a bill brought by the heirs and devisees of Daniel Eastman, Sr., with alternative prayers for damages for the breach of a bond to convey certain land, and for specific performance. A decree was made for specific performance, and the case was sent to a master to ascertain the amount to be paid by the complainants in order to entitle themselves to a conveyance. The master made a report and a supplemental report, to which the complainants took various exceptions. They also filed a petition that the decree be for damages instead of specific performance. The exceptions and petition were overruled, and a final decree entered, and the complainants appealed. We shall go into the documents referred to no further than is necessary to dispose of the points that have been argued, and shall assume in favor of the complainants that their exceptions have been duly taken and are still open; but we do not mean to imply that the court would not be justified in declining to consider them on account of the form in which they are presented.

[139 Mass. 349]1. The decree for specific performance, under which all the hearings before the master have taken place, was not appealed from, and it is now too late for the complainants to ask for damages instead. Moreover, no ground is shown for relief in that form, if the question had been raised at an earlier stage. The plaintiffs elected to come into equity, and they have made out a case for equitable relief. There is no disability on the part of the defendants to perform the contract. If the complainants were entitled to damages, they knew it when they brought their bill; and if they want them, they should have sued at law. See Milkman v. Ordway, 106 Mass. 232.

2. The condition of the bond is set forth in Caverly v. Simpson, 132 Mass. 462. The master reported that a sufficient tender was made December 16, 1879, and charged the defendant with rents and profits from that date, but refused to charge her with those previously received. We cannot say that the master's refusal was wrong. The report discloses nothing in favor of the complainants beyond what can be found on the face of the bond. The bond is conditioned for a conveyance on the terms of the obligee's paying $5,000 within five years, with interest from the date of the bond at 8 per cent., to be reckoned semi-annually, and also all sums expended by the obligor in making improvements or removing incumbrances, with like interest from the dates of the several payments. Nothing is said of any cross-allowance for rents and profits. The obligee was a stranger to the title. He was free to take the land or not within five years, but had no interest in it until ...