Lowe v. Harwood

• Citation: 139 Mass. 133,29 N.E. 538
• Parties: LOWE v. HARWOOD.
• Decision Date: 25 March 1885
• Court: United States State Supreme Judicial Court of Massachusetts

139 Mass. 133

29 N.E. 538

LOWE

v.HARWOOD.¹

Supreme Judicial Court of Massachusetts, Suffolk.

March 25, 1885.

Exceptions from superior court, Suffolk county; ROCKWELL, Judge.

Action by William W. Lowe against Henry V. Harwood for damages for breach of contract to convey and exchange certain real and personal property. The contract was signed by the parties, and was as follows: “This agreement certifies that W.W. Lowe agrees to sell to H.V. Harwood estate No. 159 Arlington street, Chelsea, and $500 cash, subject to $1,200 mortgage, and take in payment therefor two farms in Middleborough of eleven and sixty seven acres, with all the stock, crops, and tools, etc., as per list shown, except one Jersey cow and corn-fodder; and said Harwood hereby agrees to exchange, as aforesaid, said farms, subject to two mortgages of $250 and $500.” It was dated November 8, 1883. On November 12th defendant wrote plaintiff that he would give up the trade, and before December 1st he conveyed the property to another. Plaintiff replied immediately to defendant's letter of November 12th, saying that he would hold him to the agreement, and on November 22d he again wrote defendant, stating that he would hold him to the agreement, and offering to perform on his part. To this defendant replied, on November 24th, that he supposed his previous letter “wound the business up.” Judgment for defendant. Plaintiff excepts. Reversed.

C.G. Keyes, for plaintiff.

T. Weston, Jr., for defendant.

HOLMES, J.

The defendant's conveyance of his land and chattels to a third person, when the plaintiff was in no default, was sufficient to constitute an actionable breach of contract, although the plaintiff had made no tender. Newcomb v. Brackett, 16 Mass. 161;Buttrick v. Holden, 8 Cush. 233. See, also, Farrington v. Hodgdon, 119 Mass. 453, 458. It is suggested that it does not appear that the plaintiff was able to pay the money which he was to pay. But he was personally bound for it, and the degree of his ability at any moment before he was called on to pay was no concern of the defendant's. The way for the defendant to test that was to tender performance on his side conditionally upon the plaintiff's performing his part of the agreement. See Brown v. Davis, 138 Mass. 458.

But apart from the conveyance, and it would seem before it was made, although the date is not fixed, the defendant broke the contract by repudiating it. The agreement was signed on November 8, 1883. The plaintiff at once and continuously tried to have it performed. But on November 12th the defendant wrote to the plaintiff that his wife would not sign a deed, and that, “taking it all around, will have to give up the trade.” On November 24th, after other correspondence and in answer to a notice from the plaintiff that he should hold the defendant to the agreement, and calling on him to carry it out, the defendant wrote that the bargain was made dependent on his wife's consent. “She refused, and I notified you, and that wound up the business, as I understood it.” Read in the light of what had gone before, this was an absolute repudiation of the...