Libman v. Levenson
| Decision Date | 28 June 1920 |
| Citation | 128 N.E. 13,236 Mass. 221 |
| Parties | LIBMAN v. LEVENSON. LEVENSON v. LIBMAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior Court, Suffolk County; Franklin T. Hammond, Judge.
Suits by Louis Libman against Joseph Levenson and by Joseph Levenson against Louis Libman. On report to the Supreme Judicial Court. In the suit of Libman v. Levenson, decree ordered dismissing the bill; in that of Levenson v. Libman, decree ordered for plaintiff.
Hurlburt, Jones & Hall and Herbert U. Smith, all of Boston, for vendor libman.
Dunbar, Nutter & McClennen, of Boston (J. J. Kaplan, J. E. Peakes, and G. P. Davis, all of Boston, of counsel), for purchaser.
These are cross-suits in equity. On March 31, 1920, the parties entered into a contract in writing whereby Libman agreed to sell a tract of real estate for $2,000 above an existing mortgage and Levenson agreed to purchase and pay for the same, ‘papers to pass on or before April 10, 1920.’ The real estate ‘as described in the agreement consists of a parcel of land numbered 202-208a Washington street, Dorchester district of Boston, comprising 7,030 square feet of land and a one-story brick block of six (6) stores thereon,’ built in 1916.
On or about April 5, 1920, a retaining wall on the rear of the premises, without any fault on the part of Libman, collapsed on account of erosion and other natural causes, and fell onto and across a yard about 15 feet in width situated between the retaining wall and the building, and onto and against the rear of the building causing the greater part of the real wall of four of the stores to collapse and breaking the windows in the front of the four stores.
No repairs were made on the premises after the collapse, and the building and premises have since remained and now are in the same damaged condition as they were immediately following the collapse.
The question is whether Levenson can be compelled to take conveyance and pay for the real estate under these circumstances or whether he is entitled to cancellation of the contract and recovery from Libman of the money already paid on account of the contract.
It is manifest from the facts that there has been a destruction or loss of a substantial part of the real estate constituting the subject matter of the contract occurring before the time fixed for performance without the fault of either party. The real question is where that loss must fall.
This hardly can be regarded as an open question in this commonwealth. In Thompson v. Gould, 20 Pick. 134, a contract had been made for the purchase and sale of land but before the time for performance the house thereon was burned. It was said at page 138:
It is true that this was an action of contract and the contract was not enforcible under the statute of frauds but with the amplitude of discussion of legal questions lying within the field of the point actually involved customary with the court of the day, the whole subject was surveyed in the opinion. The statement above quoted appears to have been accepted as the law of the commonwealth. In Wells v. Calnan, 107 Mass. 514, 9 Am. Rep. 65, an action of contract was before the court for breach of a written agreement to purchase land, where the buildings were destroyed before the deed was tendered. It was said by Mr. Justice Gray, relying in part upon Thompson v. Gould as well as upon other previous decisions fully reviewed by him:
‘When property, real or personal, is destroyed by fire, the loss falls upon the party who is the owner at the time; and if the owner of a house and land agrees to sell and convey it upon the payment of a certain price which the purchaser agrees to pay, and before full payment the house is...
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...agreement might have been abrogated by the parties. The property might have been destroyed in substantial part. Libman v. Levenson, 236 Mass. 221, 128 N. E. 13, 22 A. L. R. 560. The agreement between the seller and the buyer of the property that the latter should assume and pay the taxes wa......
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Table of Cases
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