Leigh v. Rule
| Decision Date | 29 September 1954 |
| Citation | 121 N.E.2d 854,331 Mass. 664 |
| Parties | Maurice LEIGH and another v. Alberta E. RULE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
James M. Howe, Boston, for plaintiff.
George M. Poland, Boston (Ella M. Dolan, Boston, with him), for defendant.
Before QUA, C. J., and RONAN, WILKINS, SPALDING and COUNIHAN, JJ.
The plaintiffs in this suit seek to recover a deposit made by them under an agreement to purchase real estate, and incidental damages. At the request of the defendant the following jury issues were framed: It is agreed that the answers to these questions will settle the controversy. 1 At the close of the evidence the defendant presented a motion that the jury be directed to return a negative answer to each question. The motion was denied and the defendant excepted. The jury returned affirmative answers to both questions.
We summarize the evidence as follows: On June 14, 1951, the plaintiffs and the defendant executed an agreement whereby the defendant agreed to sell to the plaintiffs a parcel of real estate in Nantucket. Under the agreement the property was to be conveyed on or before November 1, 1951, at which time 'Full possession of the said premises, free of all tenants,' was to be delivered to the plaintiffs. The agreement further provided that 'If the * * * [seller] shall be unable to give title or to make conveyance as above stipulated, any payments made under this agreement shall be refunded, and all other obligations of either party hereunto shall cease.' At the time of the execution of the agreement a deposit of $750 on account of the purchase price was paid by the plaintiffs as provided in the agreement.
Between June 14, 1951, and October 26 of that year the defendant was in communication with the plaintiffs who 'informed her or led her to believe that they meant to perform their part of the contract' on November 1, the date for performance fixed in the agreement. During this period the plaintiffs did nothing to cause the defendant to believe that they would not perform on that date. On or about October 24, 1951, the plaintiffs communicated with the defendant by telephone from New York, where they lived, that they planned to come to Nantucket on October 26 'for the purpose of consummating the agreement * * * on November 1.' In that conversation the defendant 'did not tell the plaintiffs * * * that substantially all her furniture was still in the house.' The defendant saw the plaintiffs at Nantucket between October 26 and November 1 and on or about November 1, and the defendant did not express to them 'any doubt or dissatisfaction with respect to their intention or ability to perform.' The defendant 'admitted that she was not able to deliver full possession of the premises free from all tenants on November 1,' that at that time the house was occupied by her and substantially all of her possessions were in it, and 'that, therefore, she was not able to perform her part of the * * * contract on November 1.' The plaintiffs were not present at the trial and called no witnesses. The evidence summarized above was agreed upon or came from answers by the defendant to the plaintiffs' interrogatories and a notice to the defendant to admit facts.
The defendant testified that in her telephone conversation with the plaintiffs on October 24 she informed them that she had been ill and would not be able to vacate the house on November 1 and that 'they assented'; that between October 26 and November 1 the plaintiffs 'orally agreed that * * * [the defendant] could have until November 18, 1951, to complete the conveyance and remove her furnishings'; that she moved from the premises on November 15; and that on that day she went to the bank designated by the plaintiffs to obtain the balance of the purchase price but could not get it and no part of the balance has been paid.
Mr. Sanguinetti, an attorney who had examined the title for the savings bank which was to take a first mortgage of $10,000 on the property, testified that the male plaintiff, hereinafter called Leigh, told him while he was in Nantucket between October 26 and November 2 or 3 that an extension to November 18 or 21 had been agreed to. He also testified that he called Leigh on the telephone on November 16 and informed him that the premises were no longer occupied, and that Leigh stated that he was unable to pay the balance of the purchase price of $4,250; that Leigh then attempted to get the amount of the first mortgage increased and upon the bank's refusal to do so sought a second mortgage from the defendant in the amount of $4,000; that while the defendant was considering the matter he (Mr. Sanguinetti) drafted a second mortgage and a note and mailed them to Leigh on November 16; that these were duly executed by both plaintiffs, and together with a check for $250 were mailed to Mr. Sanguinetti on November 20; and that the defendant told him she would not accept a second mortgage and he informed the plaintiffs of that fact, returning to them the check, the note, and the mortgage. The note and the mortgage dated November 20, 1951, and executed by the plaintiffs were introduced as exhibits.
The bill of exceptions states that 'the defence relied on was that the plaintiffs and the defendant orally agreed to extend the time for performance and that the plaintiffs never were ready and able or offered to pay the defendant the balance of the purchase price at the time finally agreed.'
It cannot be said that the evidence required a finding that the parties had agreed to an extension. Even though the evidence on this point was uncontradicted, the jury were not obliged to believe it. Reardon Importing Co. v. Security Trust Co., 318 Mass. 304, 307, 61 N.E.2d 535, and cases cited. There may well have been negotiations looking toward an extension, as the execution by the plaintiffs of the second mortgage and note strongly suggests, but it could not be said as matter of law that the parties agreed upon one.
Admittedly, the defendant was not able to perform on November 1, 1951. But the defendant argues that the plaintiffs cannot recover because they pleaded that they were ready, able, and willing to perform on the day fixed in the agreement, and that they failed to prove this allegation. The defendant's motion for a directed answer on the issue whether the plaintiffs were entitled to recover...
To continue reading
Request your trial
-
Charles River Park, Inc. v. Boston Redevelopment Authority
...(1981); 6 Corbin, Contracts § 1252 (1962). See also Costello v. Tasker, 227 Mass. 220, 222-223, 116 N.E. 573 (1917); Leigh v. Rule, 331 Mass. 664, 668, 121 N.E.2d 854 (1954); Park, Real Estate Law § 964, at 421 (1981) (the law does not require a party to tender performance if the other part......
-
Cataldo v. Zuckerman
...option if a prompt exercise of the option had been made. We perceive no room on this record for the application of Leigh v. Rule, 331 Mass. 664, 668-669, 121 N.E.2d 854 (1954). It is true that Cataldo (a) in early pleadings, did not claim deprivation of an interest in the Park Plaza project......
-
Lafayette Place Associates v. Boston Redevelopment Authority
...in default unless he is ready, able, and willing to perform and has manifested this by some offer of performance." Leigh v. Rule, 331 Mass. 664, 668, 121 N.E.2d 854 (1954). See 6 Corbin, Contracts § 1258 (1962). Any material failure by a plaintiff to put a defendant in breach bars recovery,......
-
DeSaulnier, In re
...their submission to a jury for determination. A jury trial in these circumstances would be an exercise in futility. See Leigh v. Rule, 331 Mass. 664, 6698 121 N.E.2d 854. To fetter the ability of State courts to protect themselves against contempt in proceedings, such as this one, of the ut......