Fogg v. Price

• Decision Date: 05 January 1888
• Parties: FOGG v. PRICE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 513

14 N.E. 741

FOGG v. PRICE et al.

Supreme Judicial Court of Massachusetts, Essex.

January 5, 1888

COUNSEL

George B. Ives, for defendants.

OPINION

HOLMES J.

It was formerly a rule that you could not demur and answer to the same matter, and, as the demurrer was a reason for not answering, the subsequent filing of an answer overruled the demurrer. Now that a demurrer may be inserted in an answer (rule 13,) there seems to be no longer any reason why a separate demurrer should be overruled by an answer filed subsequently. But, whether the answer had such an effect or not, the court had power to allow it to be withdrawn, (rule 22;) and when it was withdrawn, then, so far as the present question is concerned, it was as if it never had been filed. To say that the demurrer was dead is only a misleading figure of speech. It was a part of the record, which may have been inoperative, so long as another part of the record showed that it had no function to perform, because the defendant had done what the demurrer said he ought not to be required to do. But, when the record ceased to show that state of things it was not necessary for the defendant to go through the empty form of requesting the clerk to note a second filing of the paper. If it were, it would not help the plaintiff, as we should permit it to be done now, because we are of opinion that the bill does not state a case for equitable relief, and that the covenant set out is not of a nature to be specifically enforced.

The covenant is, "if the premises are for sale at any time, the lessee shall have the refusal of them." This is simply an agreement to give the lessee the first chance to make a contract,--an agreement to sell,--if the parties can agree, but not otherwise. It neither fixes the price, nor provides any way in which it can be fixed. Suppose that the premises had been advertised for sale, and that the tenant had brought his bill at once. It is plain that the court could not have named any sum at which the lessor should be compelled to sell. Considered, therefore, in the light of a contract to sell, as it is treated by the bill, it does not satisfy the statute of frauds, and apart from the statute it is not such a contract as equity can specifically enforce. Pray v. Clark, 113 Mass. 283; Grace v. Denison, 114 Mass. 16; Gelston v. Sigmund, 27 Md. 334; Abeel v. Radcliff, 13 Johns. 297; Bromley v. Jefferies, 2 Vern. 415. It may be said that the contract does mean that the lessor will deal with the lessee on the same terms as with any one else, or at least will not discriminate against him; that the lessor has now fixed his price by a sale; and that, as the purchaser had notice of the contract, the defendants have removed the difficulties in the way of specific performance by their own conduct. It might be that the remedy would do substantial justice as against the lessor, but, in order to do it, a term would have to be added which is not in the contract. The contract certainly does not contemplate a sale to somebody else as a mode of ascertaining the price at which the lessor will sell to the lessee. Bromley v. Jefferies, ubi supra. The statute of frauds remains unsatisfied, notwithstanding what has happened. It is not the event, but the nature of the contract, which is to be considered; and that must be determined by looking at it as it stood at the time it was made. See Stapilton v. Stapilton, 1 Atk. 2, 10; Walton v. Coulson, 1 McLean, 120, 129; Moore's Adm'rs v. Fitz Randolph, 6 Leigh, 175, 186.

In deciding the case upon this ground, we do not mean to intimate that the bill does not disclose laches. See Milward v. Thanet, 5 Ves. 720, note; Eads v....