Kenyon v. Suburban Realty Corp.
| Decision Date | 17 April 1923 |
| Citation | 244 Mass. 571,139 N.E. 172 |
| Parties | KENYON v. SUBURBAN REALTY CORPORATION. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Municipal Court of Boston, Appellate Division.
Action of contract by Albert B. Kenyon against the Suburban Realty Corporation for alleged failure of defendant to perform its part of an option to convey certain parcels of land. The municipal court found for plaintiff, and from an order of the appellate division dismissing the report, defendant appeals. Reversed, and judgment entered for defendant.
The option is quoted in the opinion. The municipal court found that plaintiff at no time during the life of the option indicated to defendant an acceptance of the option or an unequivocal election to accept on receipt of the figures, whatever they might be found to be, but that he frequently asked for the figures and was repeatedly promised them, and that the situation was such that, until he got them, he was in no position to make an intelligent choice whether to accept or not; that defendant did not suggest, nor did either party contemplate, that plaintiff should get out the figures from the books; that defendant never gave the figures, and never during the life of the option withdrew its promise to give them; that plaintiff was not himself financially able to take up the option, but had found customers ready and able to purchase at a price which would show a profit; and that, had not defendant withheld the figures, plaintiff would have accepted the option and carried it through.
Horatio Alden, of Boston, for appellant.
Joseph G. Bryer, of Boston, for appellee.
This action of contract was twice tried in the municipal court of the city of Boston, before the Chief Justice of that court. The appellate division ordered a new trial on the report of the first trial, and entered an order, ‘Report dismissed,’ on the report of the second trial. The case is before this court on the appeal of the defendant.
The contract upon which the plaintiff seeks to recover damages for the alleged failure of the defendant to sell to the plaintiff certain parcels of land is dated ‘Boston, July 2, 1919,’ and, omitting the names and titles of the plaintiff and defendant, reads as follows:
‘Dear Sir: In consideration of the release to the trustees of E. N. Foss, signed this day, the Suburban Realty Corporation will give you the right for 90 days to buy from them lots and houses numbered 291, 289, 288, 285, 284, 283, at a price which shall pay to them entire cost, taxes and interest as represented by their books or E. N. Foss' books.’
The plaintiff sought to recover as damages the difference between the fair market value of the estate referred to in the above memorandum of contract and the cost of the same, taxes, and interest as represented by the books of the Suburban Realty Corporation or the books of E. N. Foss. The declaration of the plaintiff alleged:
‘That he has always been ready and willing to perform his part of said contract but the defendants have refused and neglected to carry out the terms, conditions, and obligations entered into by them.’
It appeared in evidence that the wife of the plaintiff had previously held title to this property, the beneficial ownership being in the plaintiff; that early in the year 1919, at the request of the trustees for Eugene N. Foss, arrangements had been made for the conveyance of the property to the defendant, and the plaintiff had also released to said trustee certain rights, all of which were the consideration for the option above set forth; that the written agreement upon which the plaintiff declares, merely reduced to writing a former verbal arrangement which the plaintiff had had with the defendant corporation; that the word ‘cost’ in the said agreement represented the amount of the construction loan on each of said houses, plus anything that had been expended upon the property in the way of repairs, improvements and expenses, with a credit for all income from the property, and that the balance was the amount which the plaintiff was to pay for the property under his option.
There was also evidence that during the ninety days the plaintiff asked one Brown, who was...
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Exch. Realty Co. v. Bines
...was based upon sufficient consideration and determined the manner in which the papers were to be delivered. Kenyon v. Suburban Realty Corp., 244 Mass. 571, 577, 139 N.E. 172;Spring v. Leahy, 254 Mass. 614, 150 N.E. 843, 43 A.L.R. 1203;Zimetbaum v. Berenson, 267 Mass. 250, 166 N.E. 719; Am.L......
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...never notified Litz that they were accepting the option. In this connection the defendants cite the case of Kenyon v. Suburban Realty Corp., 244 Mass. 571, 139 N.E. 172, 173, which seems directly in point. In that case, the defendant had given plaintiff an option to purchase certain real es......
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