E. M. Loews, Inc. v. Deutschmann

• Decision Date: 19 February 1958
• Citation: 147 N.E.2d 832,337 Mass. 42
• Parties: E. M. LOEWS, Inc. v. Tobe C. DEUTSCHMANN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 832

147 N.E.2d 832

337 Mass. 42

E. M. LOEWS, Inc. v. Tobe C. DEUTSCHMANN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 9, 1957.

Decided Feb. 19, 1958.

Joseph M. Koufman, Boston (Phil Fine, Boston, with him) for plaintiff.

David Burstein, Boston, for defendants Deutschmann.

Before WILKINS, C. J., and WILLIAMS, COUNIHAN, WHITTEMORE and CUTTER, Jj.

WILLIAMS, Justice.

This is a suit to obtain specific performance by the defendants Tobe C. Deutschmann and his wife, Julie, of a written agreement dated March 10, 1955, to convey to the plaintiff or its nominee land in Canton, and to restrain a third defendant, Alfred W. Baldwin, from transferring or encumbering his interests as subsequent mortgagee of the land and as assignee or pledgee of the contract. Interlocutory decrees were entered taking the plaintiff's bill for confessed against all defendants under Rule 25 of the Superior Court (1954) and a final decree granting the plaintiff specific relief. The case is here on the appeal of Deutschmann and his wife, hereinafter referred to as the defendants, from the final decree.

The question for decision is whether upon the facts alleged in the plaintiff's bill, which have been established by the interlocutory decrees, Mayberry v. Sprague, 207 Mass. 508, 512, 93 N.E. 925; McArthur v. Hood Rubber Co., 221 Mass. 372, 374-375, 109 N.E. 162; Boston Safe Deposit & Trust Co. v. Stratton, 259 Mass. 465, 476-477, 156 N.E. 885; Grant v. Pizzano, 264 Mass. 475, 480-481, 163 N.E. 162; Prudential Trust Co. v. McCarter, 271 Mass. 132, 136, 171 N.E. 42; Pofcher v. Fisher, 272 Mass. 78, 83, 172 N.E. 94, the decree rightly could have been entered. Levinson v. Connors, 269 Mass. 209, 210, 168 N.E. 736; Dondis v. Lash, 283 Mass. 353, 354, 186 N.E. 549; Davis v. Hill, 329 Mass. 764, 108 N.E.2d 279.

The contract, a copy of which is annexed to the bill, provided for the conveyance on July 1, 1955, of sixty acres of the land of Deutschmann in Canton described by metes and bounds. That part of the land which was not to be included in the sixty acres should 'be designated by the buyer prior to taking title to the land conveyed' and the seller should have a right of way of twenty-five feet to the excepted land. A quitclaim deed was to run to the buyer or to such person or corporation as he should designate seven days beforehand.

It was 'expressly understood and agreed that the performance of this contract by the buyer is contingent upon the buyer, or the buyer's nominee, being licensed by the town of Canton prior to June 24, 1955, to conduct a motion picture theatre upon the * * * described premises. The buyer agrees that it or its nominee will file an application to operate a theatre on said premises and will prosecute such application diligently. If the buyer or the buyer's nominee is unsuccessful in its efforts to obtain a license to operate a theatre on the said premises then notwithstanding the failure to procure such license the buyer shall have the exclusive option to take title to the aforedescribed premises in accordance with this agreement.'

The purchase price was to be $185,000 of which a loan of $25,000 to the seller by one Loew was to be applied on account and the sum of $160,000 was to be paid in the form of a promissory note, secured by mortgage, payable by quarterly instalments in fifteen years and bearing interest at four and one half per cent per annum. 'It is also agreed that the said promissory note shall contain a provision that no payments of principal shall be due or payable until a theatre has been constructed on the premises and is in operation.' Time was stated to be of the essence of the agreement and the time for delivery of the deed and payment of consideration set at 'twelve o'clock noon of the date fixed for conveyance, at the registry of deeds or the registry district in which said deed should by law be recorded or registered.' The obligations of the parties should cease if the seller could not convey title as stipulated, unless the buyer elected to accept the title offered with a reasonable deduction for title defects.

The plaintiff alleged 'That on dates prior and subsequent to June 24, 1955, your plaintiff through its agents notified the defendant, Tobe C. Deutschmann, that it had made efforts to obtain a license from the town of Canton to conduct a motion picture theatre upon the said premises and was unable to obtain the same and notwithstanding the failure to procure such a license that it was ready, willing and able to carry through all of the requirements of the aforesaid agreement and to perform all of its obligations under the aforesaid agreement * * *. That...