Gormley v. Kyle

• Decision Date: 09 May 1884
• Citation: Gormley v. Kyle, 137 Mass. 189 (Mass. 1884)
• Parties: John Gormley v. Amos M. Kyle
• Court: Supreme Judicial Court of Massachusetts

137 Mass. 189

John Gormley v. Amos M. Kyle

Supreme Court of Massachusetts

May 9, 1884

Suffolk. Contract for money had and received, being the amount paid by the plaintiff as part of the purchase money at a sale by the defendant of land by auction. Trial in the Superior Court, without a jury, before Pitman, J., who found for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.

Exceptions overruled.

W. O Kyle, for the defendant.

F. C Welch, (W. E. Welch with him,) for the plaintiff.

C. Allen J. Devens & Colburn, JJ., absent.

OPINION

C. Allen J.

When the plaintiff's attorney and the defendant met, on the morning of April 8, 1882, the defendant was in no condition to carry out his contract, and the deed which he tendered would not have conveyed a title which the plaintiff was bound to accept. Without mentioning other supposed defects, there were two outstanding mortgages and an outstanding attachment. The defendant made no offer to discharge these incumbrances, as was done in Howland v. Leach, 11 Pick. 151, 155, where it was manifest from the evidence that the vendor could and would have given a good title, and that the purchaser's refusal to complete the contract was not founded upon any doubt of the vendor's ability to do so. Such was not the case here. The plaintiff was not bound to pay the purchase money and accept the deed, and leave the defendant to clear up the defects in the title afterwards with the aid of the purchase money. Besides, the concealment of the Kittredge mortgage, which might have been put on record at any moment, was a close approach to a fraud.

But the stress of the argument for the defendant rests on the ground that the plaintiff did not tender the purchase money, or offer to perform his part of the contract, or request performance by the defendant, and that he abandoned the contract before the expiration of the time limited for its performance by the defendant. To this, the findings of the judge are a sufficient answer. "The parties treated the matter as if the time had expired. The defendant made tender of his deed. No further time was asked. Nothing was said about improving the title. As the title then stood, the plaintiff refused it, and had a right to. The parties then stood on their rights, and separated. At the time the parties treated the matter as closed, the defendant had not a legal and unincumbered title to the land."...