Harvey v. Bross

• Decision Date: 22 October 1913
• Citation: 216 Mass. 57,104 N.E. 350
• Parties: HARVEY v. BROSS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

216 Mass. 57

104 N.E. 350

HARVEY v. BROSS.

Supreme Judicial Court of Massachusetts, Hampden.

October 22, 1913

SYLLABUS

The following is the correspondence referred to in the opinion:

'Westfield Mass., Feb. 16/12.

'Mrs Wm. Bross--Dear Madam: As I have been considering buying a small farm, and learning through Miss N. Northam that you owned a farm in Feeding Hills, which she thought perhaps you would like to turn into cash, on acct. of it depreciating in value to rent.

'If you wish to sell, will you please write me your lowest cash price and the boundaries, I will attend to the matter at once and give you my answer.

'You may refer to Miss Northam as to my responsibilities.

'Awaiting your convenient reply, I remain,

'Yours very respectfully,

F. L. Harvey.'

'141 South St., Morristown, New Jersey.

'Feb. 20th, 1912.

'To Frank L. Harvey, Esq., 238-240 Elm St., Westfield, Mass.--Dear Sir: Your letter of Feb. 16th, received to-day, having been sent me from my home, Babylon, L. I. I would take just now $5,000 five thousand dollars for the place. Cash as I should like to use that amt.

'There are about 150 acres or some less since the Water Co. put the pipes for the City of Springfield. If you call upon Mr. John G. Freeland of Feeding Hills he can tell you even more of the place than I can.

'There is no mortgage upon the place. But let me know very soon if you think you want it. Remember I am giving you my lowest cash price for ten days consideration.

'Mrs. Bross.

'141 South St., Morristown, New Jersey.'

It was agreed by counsel that defendant owned no other land in Feeding Hills.

COUNSEL

H. W. & J. B. Ely, of Springfield, for plaintiff.

J. B. Carroll, W. H. McClintock, and J. F. Jennings, all of Springfield, for defendant.

OPINION

BRALEY J.

The final decree dismissing the bill having been irregularly entered while the plaintiff's exceptions were pending it can have no greater force than an order for a decree. Prescott v. Prescott, 175 Mass. 64, 68, 55 N.E. 805; Boston & Maine R. R. v. Hunt, 210 Mass. 128, 132, 96 N.E. 140. And the only question before this court for revision is, whether the decision of the presiding judge as matter of law was warranted by the evidence. Kenndy v. Welch, 196 Mass. 592, 83 N.E. 11.

The bill asks for the specific performance of a contract to sell and convey to the plaintiff a farm of about 150 acres owned by the defendant, and the judge correctly ruled that the correspondence of the parties shown by two letters and the evidence as to the township where the land was located were sufficient to satisfy R. L. c. 74, §§ 1, 2. Nickerson v. Weld, 204 Mass. 346, 354, 90 N.E. 589.

It was necessary for the plaintiff, however, to prove that he tendered performance on his part, and the evidence as to his compliance with the terms of the contract relating to payment of the purchase price was conflicting. Sarkisian v Teele, 201 Mass. 596, 88 N.E. 333. The contract must be construed as calling for payment of the entire amount in cash within ten days. But the plaintiff, while conceding that he did not tender the money, contended and testified, that the defendant after the time had expired agreed to take, and accepted and retained, his certified check which purported on its face to be given in part payment for the farm. A mutual...