M. De Matteo Const. Co. v. Daggett

• Decision Date: 28 June 1960
• Citation: 168 N.E.2d 276,341 Mass. 252
• Parties: M. DE MATTEO CONSTRUCTION CO. v. Dewey E. DAGGETT and another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 276

168 N.E.2d 276

341 Mass. 252

M. DE MATTEO CONSTRUCTION CO. v. Dewey E. DAGGETT and another.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued May 2, 6, 1960.

Decided June 28, 1960.

Herman Snyder, Boston (Richmond I. Bailen, Boston, with him), for plaintiff.

John R. Ambrogne, Boston (Paul G. Counihan and Philip D. Fine, Boston, with him), for defendants.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE, and CUTTER, JJ.

CUTTER, Justice.

This is a bill to obtain specific performance of an agreement dated February 7, 1957, by which Daggett and his wife agreed to sell to the plaintiff (Construction) a large tract of marshland in Revere and Saugus. A demurrer was overruled. A master's report was favorable to Construction. The Daggetts filed motions to recommit the report (a) to require additional subsidiary findings; (b) to make certain findings; (c) to report portions of the evidence; and (d) to make further summaries of the evidence with respect to certain objections. An affidavit of counsel suggested what 'would be brief, fair, and accurate summaries of evidence under Rule 90 of the Superior Court' (1954). See Cantor v. Cantor, 325 Mass. 719, 721, 92 N.E.2d 368. By counteraffidavit, Construction's counsel submitted corrections of these suggested summaries. The motions to recommit were denied, together with motions to dismiss the bill and to discharge the reference to the master. An interlocutory decree was entered overruling the Daggetts' exceptions and confirming the report. From all these interlocutory decrees, and from a final decree ordering specific performance the Daggetts have appealed. The facts are stated on the basis of the master's report.

Daggett owned the real estate (the locus), described in the agreement. He operated a wholesale lobster business on ten acres of land nearby. On January 31, 1957, Daggett talked with John DeMatteo of Construction and a broker and sent them to an attorney, Mr. Davis, to discuss leasing the locus, part of which was used for dumping. The next day Mr. Davis and Daggett went over the situation. On February 3, Daggett told Mr. Davis that he 'did not want to lease, but rather wanted to sell.' On February 5, Daggett discussed with Mr. Davis 'the net [tax] result if he should sell, and whether he should sell for cash or on an instalment basis,' and also the expense for brokers' commissions. Daggett stated 'that he could not run two businesses, that he was extremely tired and would have to give up either the lobster * * * or the dumping business.' He pointed out that the 'lobster business was so precarious no one would buy it, so he would have to stay in that and sell the dump.' He authorized Mr. Davis to sell for $1,250,000.

Mr. Davis explained the situation to DeMatteo, who said he would prefer a lease, but when informed that 'it was either a sale or nothing' DeMatteo offered $800,000, later raised to $1,000,000. Various matters, such as interest, were adjusted in negotiations, which Mr. Davis reported to Daggett who said, 'Sell it.' The agreement was drawn by Mr. Davis and counsel for Construction and 'was handed to Mr. Davis to get * * * Daggett's signature.' Mr. Davis on February 7 took the agreement to Daggett and his wife, who both signed it 'after they had gone over it with Mr. Davis for over an hour.' The agreements were delivered on February 8 and a certified deposit check was given.

Prior to February 7, Daggett 'had been complaining about his health * * * tired and in a state of depression.' He had been released from a hospital on January 25, where he had been for examination by a Dr. Thorpe, who advised Daggett 'to see a psychiatrist.' Dr. Thorpe thought 'Daggett's judgment was impaired.' A few weeks later Daggett consulted a psychiatrist. All this was unknown to Construction's representatives on February 7 and 8.

On February 9 and 10, Daggett complained to Mr. Davis of the contract which he had made and 'was critical of Mr. Davis for having permitted him to enter into the deal.' On February 12, Mr. Davis, purporting to speak for the Daggetts, wrote to Construction, that '[w]e now desire to cancel this agreement * * * without any of us having any recourse against any other party.' The letter proposed return of the deposit, payment of $10,000 by Daggett to Construction as damages, and a seven day option to Construction to purchase the land on the terms of any acceptable offer later made to Daggett.

On March 19, 'there was a telephone conversation between * * * Mr. Snyder [attorney for Construction] and Mr. Davis, at which time Mr. Snyder * * * learned for the first time that * * * Daggett was ill and * * * would be unable to take part in any business discussions or transactions for * * * at least six weeks.' One of the DeMatteos had been told on February 12 of Daggett's illness. On March 20, Mr. Davis wrote to Mr. Snyder that 'it is my suggestion that any * * * matters pending between * * * [Daggett] and your * * * client remain as is until * * * Daggett's recovery is to a point where his doctor sanctions his resumption of business matters.' Mr. Snyder, the next day, agreed that all matters should remain 'in statu quo for * * * six weeks [which, of course, would expire about May 1]. I assume [that] you will communicate with me on or before expiration of that time.' In the meantime, on March 15, at a conference with Mr. Snyder and Martin DeMatteo, Mr. Davis had received from Construction three proposals for settling the matter, which Mr. Davis undertook to discuss with his client.

Mr. Snyder 'would call Mr. Davis from time to time as the date [May 7] for passing papers set forth in the agreement approached.' On May 22, Mr. Davis wrote to Mr. Snyder that Daggett's 'doctor forbids him to attempt to transact any business * * * for at least the next month * * *. Mrs. Daggett concurs that * * * the time for performance of the agreement * * * should be considered as * * * postponed to a date not earlier than July 7.' Construction's counsel on May 27 agreed that 'all pending matters, agreements and offers * * * be postponed to July 7.'

Subsequent to the May 22 letter, Mr. Snyder made inquiries from time to time of Mr. Davis and was told on each occasion that 'Daggett was not physically able to transact business and that he would communicate municate with Mr. Snyder when the time arrived for relations to be resumed between the parties.' On June 7, 'Daggett returned to business for a half day, and thereafter' increased the 'time spent at his business.' Further inquiries were made by Mr. Snyder on July 1 and 2. Mr. Davis could not be reached from July 3 to 7. On July 3, Mr. Snyder wrote to Mr. Davis to inquire whether Mr. Davis had completed a title search on the property which Mr. Snyder said Mr. Davis had undertaken to make for Construction and asking him to arrange any necessary postponement. Mr. Davis received this letter on Monday, July 8, when new counsel for the Daggetts became associated with Mr. Davis. No deeds to convey the locus that day were prepared by Mr. Davis and neither Mr. Snyder nor Mr. Davis went to either of the two registries of deeds (Essex and Suffolk) to make tender, although Mr. Davis checked by telephone to see whether Mr. Snyder was there. Mr. Davis did not get in touch with Mr. Snyder on July 8, but on July 10 he notified Construction by mail of 'Daggett's decision to rescind this agreement' and offered to return the deposit check. On July 12, Mr. Snyder replied, reciting past events and saying that his client was 'desirous of taking title' to the locus and had 'been awaiting only the results of your title examination and * * * Daggett's recovery for the actual setting of the date for passing papers.' On July 24, Daggett's new counsel wrote that it was Daggett's 'position * * * that the agreement dated February 7 * * * stands rescinded.' The bill for specific performance was initiated on August 8.

1. The Daggetts contend that Construction failed to tender performance when due and has shown no excuse for such failure. The master concluded that 'every act of the * * * [Daggetts] or their attorneys * * * after February 7 * * * indicated a firm purpose to avoid the agreement even though the * * * [Daggetts] were to pay damages' and that representation of Construction on July 8 at the registries of deeds would have been 'an empty * * * gesture.'

Mr. Davis's letter of February 12 offered cancellation of the agreement on terms. A possible cancellation remained the subject of negotiation thereafter. On March 15, Mr. Davis informed Mr. Snyder that 'Daggett is now set against going through with the agreement' and sought to work out 'some other arrangement' about which Construction then made proposals. On March 20 and 21, the attorneys reasonably arranged to keep the matter in statu quo pending Daggett's recovery. The attorneys talked by telephone on April 25, May 9, May 14, and May 20. From the letter of May 22 (Mr. Davis to Mr. Snyder) and the reply of May 27, it is reasonable to infer that Mr. Davis had informed Mr. Snyder by May 7, the day set in the agreement for conveyance, that Daggett would not then be in a position either to convey or to consider Construction's March 15 settlement proposals. The exchange of letters confirmed that performance would not be sought prior to July 7. Since July 7 was a Sunday, this meant not before July 8. See G.L. c. 4, § 9. By that time there had been no final indication of any action by or in behalf of Daggett upon Construction's March 15 proposals. Indeed, it was only on July 2 that Mr. Davis even told Mr. Snyder that Daggett 'was bank in business for an hour or two a day.' Although Mr. Davis promised to call Mr. Snyder the next day after consulting his client, Mr. Snyder did not hear from him.

In the circumstances, Mr. Davis's conduct over the months from February 12 to July 8 reasonably led Construction's representatives to understand, at least until July 2, that...