Lowe v. Harwood

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtHOLMES
Citation139 Mass. 133,29 N.E. 538
PartiesLOWE v. HARWOOD.
Decision Date25 March 1885

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.


[139 Mass. 135]C.G. Keyes, for plaintiff.

T. Weston, Jr., for defendant.

[29 N.E. 539]


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...

To continue reading

Request your trial
32 practice notes
  • Portner v. Tanner, 1060
    • United States
    • United States State Supreme Court of Wyoming
    • 17 Julio 1923
    ...damages for breach of contract. (Roehm v. Horst, 178 U.S. 1, 44 L. ed. 956; Anvil Mining Co. v. Humble, 153 U.S. 540; Lowe v. Harwood, 29 N.E. 538; Weill v. American Metal Co., 54 N.E. 1050; Paine v. Brown, 37 N.Y. 228; Ballou v. Billings, 136 Mass. 307; King v. Faist, 37 N.E. 459; Busch v.......
  • O'Neill v. Supreme Council Am. Legion of Honor
    • United States
    • United States State Supreme Court (New Jersey)
    • 23 Febrero 1904
    ...decision in Daniels v. Newton was based is hardly carried to its logical conclusion. Jewett v. Brooks, 134 Mass. 505; Lowe v. Harwood, 139 Mass. 133, 29 N. E. 538; Paige v. Barrett, 151 Mass. 67, 23 N. E. 725; Whitten v. New England, etc., Co., 165 Mass. 343, 43 N. E. 121. Upon the precise ......
  • Church of God in Christ, Inc. v. Congregation Kehillath Jacob
    • United States
    • Appeals Court of Massachusetts
    • 14 Agosto 1975
    ...and neither party had performed, one party would not be entitled to compel specific performance by the other. See Lowe v. Harwood, 139 Mass. 133, 135--136, 29 N.E. 538 (1885); Mansfield v. Wiles, 221 Mass. 75, 81, 108 N.E. 901 (1915); Gevalt v. Diwoky, 319 Mass. 715, 716, 67 N.E.2d 481 (194......
  • Stanley v. Anthony Farms
    • United States
    • United States State Supreme Court of Florida
    • 18 Febrero 1927
    ...sue on the contract without making a tender'--citing 3 Elliott on Contracts, § 1972; Lea v. Ennis, 6 Houst. (Del.) 433; Lowe v. Harwood, 139 Mass. 133, 29 N.E. 538; Warvelle on Vendors (2d Ed.) §936. [93 Fla. 298] From the long list of decisions of other states than this, holding to the sam......
  • Request a trial to view additional results
32 cases
  • Portner v. Tanner, 1060
    • United States
    • United States State Supreme Court of Wyoming
    • 17 Julio 1923
    ...damages for breach of contract. (Roehm v. Horst, 178 U.S. 1, 44 L. ed. 956; Anvil Mining Co. v. Humble, 153 U.S. 540; Lowe v. Harwood, 29 N.E. 538; Weill v. American Metal Co., 54 N.E. 1050; Paine v. Brown, 37 N.Y. 228; Ballou v. Billings, 136 Mass. 307; King v. Faist, 37 N.E. 459; Busch v.......
  • O'Neill v. Supreme Council Am. Legion of Honor
    • United States
    • United States State Supreme Court (New Jersey)
    • 23 Febrero 1904
    ...decision in Daniels v. Newton was based is hardly carried to its logical conclusion. Jewett v. Brooks, 134 Mass. 505; Lowe v. Harwood, 139 Mass. 133, 29 N. E. 538; Paige v. Barrett, 151 Mass. 67, 23 N. E. 725; Whitten v. New England, etc., Co., 165 Mass. 343, 43 N. E. 121. Upon the precise ......
  • Church of God in Christ, Inc. v. Congregation Kehillath Jacob
    • United States
    • Appeals Court of Massachusetts
    • 14 Agosto 1975
    ...and neither party had performed, one party would not be entitled to compel specific performance by the other. See Lowe v. Harwood, 139 Mass. 133, 135--136, 29 N.E. 538 (1885); Mansfield v. Wiles, 221 Mass. 75, 81, 108 N.E. 901 (1915); Gevalt v. Diwoky, 319 Mass. 715, 716, 67 N.E.2d 481 (194......
  • Stanley v. Anthony Farms
    • United States
    • United States State Supreme Court of Florida
    • 18 Febrero 1927
    ...sue on the contract without making a tender'--citing 3 Elliott on Contracts, § 1972; Lea v. Ennis, 6 Houst. (Del.) 433; Lowe v. Harwood, 139 Mass. 133, 29 N.E. 538; Warvelle on Vendors (2d Ed.) §936. [93 Fla. 298] From the long list of decisions of other states than this, holding to the sam......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT