Kares v. Covell

• Decision Date: 01 January 1902
• Citation: 180 Mass. 206,62 N.E. 244
• Parties: KARES v. COVELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

180 Mass. 206

62 N.E. 244

KARES v. COVELL.

Supreme Judicial Court of Massachusetts, Bristol.

January 1, 1902

COUNSEL

W. C. Parker and Emanuel Sallavou, for plaintiff.

Thomas F. Desmond, for defendant.

OPINION

HAMMOND J.

The lot of land called for by the bond contained nearly 27 square rods, and the title was to be free from all incumbrances. By reason of the taking of nearly one-fourth of it for highway purposes between the time of the execution of the bond and the time for the delivery of the deed, the trial court found that it was impossible for the defendant substantially to perform his contract, and that it did not appear that this condition of things was in any way caused by the plaintiff. No part of the money was paid for any specific part of the land, but the whole price was paid for the whole land, and the whole land was to be free from incumbrances. The contract was entire. If, therefore, the bond is to be interpreted as an agreement to convey the whole land free of incumbrances at the time of the delivery of the deed, it is manifest that the defendant cannot do what he agreed to do and there has been at least a partial failure of consideration in the case of an entire contract. Under these circumstances, the plaintiff may, at his election, take what the defendant can give him, and hold the defendant answerable to him in damages as to the rest or, when the parties may be put in statu quo, he may rescind the contract and recover back the money he has paid. The plaintiff has chosen to rescind. We do not understand the defendant to contest that this would be the rule if the true construction of the bond is that the title must be free from incumbrances at the time the deed is to be delivered. He contends, however, that the inability to give a good title which would excuse the plaintiff from paying the purchase price, and entitle him to recover back the money already paid, must be the result of a want of a good title in the obligor at the time the bond was given, or of some act of the obligor after the bond was given; and he has made an elaborate argument in support of that contention. But the contention does not seem to us sound. The argument proceeds upon the assumption that by the bond an equitable interest in the land is transferred to the obligee, and that the provision that the land shall be free of incumbrance at the time of the delivery of the deed is in the nature of a covenant...