Greenberg v. Lannigan
| Decision Date | 28 May 1928 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | JOSEPH M. GREENBERG v. JOHN T. LANNIGAN, JR., & another. |
November 9, 1927 February 27, 1928.
Present: RUGG, C.
J., BRALEY, CROSBY PIERCE, CARROLL, WAIT, & SANDERSON, JJ.
Contract Construction, Performance and breach, To convey real estate.
The owner of certain land agreed in writing with a prospective purchaser to convey it for a certain price on a certain date by a good and sufficient deed free from all incumbrances, and the purchaser made a payment on account of the purchase price. The property was subject to mortgages. At the date set for the conveyance, the parties met. The purchaser was neither ready nor able at that time "to pay the purchase price for the property as fixed in the agreement if a proper deed had been tendered."
The owner "did everything" he was "required to do under the agreement to sell, except that, if so required by said agreement, the mortgages on the property had not been paid of been discharged of record" before he tendered the deed to the purchaser, and he was not prepared to discharge the mortgages with his own money but did have in his possession discharges of the mortgages which he was authorized to record as soon as he received the purchase price. The sale was not consummated, and the purchaser brought an action of contract to recover the deposit. Held, that
(1) The deed tendered would leave the property encumbered by the mortgages, and the defendant therefore had failed to comply with the agreement;
(2) There was a breach of the agreement, and the plaintiff was entitled to a return of the deposit.
CONTRACT to recover a deposit of $500 made by the plaintiff with the defendants under the provisions of a contract in writing for the purchase by the plaintiff of real estate of the defendants. Writ dated February 24, 1926.
In the Superior Court, the action was tried before Flynn, J. Material evidence is stated in the opinion. The judge ordered a verdict for the defendants and reported the action to this court for determination, the parties agreeing that if upon the competent evidence, admissions and agreements there was a question for the consideration of the jury, then judgment was to be entered for the plaintiff for $500 and interest; otherwise, judgment was to be entered on the verdict.
The case was argued at the bar in November, 1927, before Braley, Crosby, Carroll Wait, & Sanderson, JJ., and afterwards was submitted on briefs to all the Justices.
H....
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