Mansfield v. Hodgdon

• Decision Date: 21 June 1888
• Citation: Mansfield v. Hodgdon, 147 Mass. 304, 17 N.E. 544 (Mass. 1888)
• Parties: MANSFIELD v. HODGDON et al.
• Court: Supreme Judicial Court of Massachusetts

147 Mass. 304

17 N.E. 544

MANSFIELD v. HODGDON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 21, 1888

COUNSEL

Francis S. Hesseltine, for defendants.

The instrument on which the plaintiff seeks to enforce the conveyance of the three lots of land to himself was a voluntary offer by Hodgdon, without consideration. It is claimed by the defendant that the seals were attached to the said writing after the signature by Hodgdon, and the appearance of the paper would seem to substantiate this; but this is immaterial, as in equity a seal does not import a consideration. Wat.Spec.Perf. § 186, p. 247, and cases cited in notes; Fry, Spec.Perf. (3d Amer.Ed.) § 92, p. 45, and cases cited in notes; Jefferys v. Jefferys, Craig & P. 138; Ellison v. Ellison, 6 Ves. 662, and cases cited in note a; Houghton v. Lees, 1 Jur (N.S.) 862; Buford's Heirs v. McKee, 1 Dana, 107; Short v. Price, 17 Tex. 397, and cases cited therein; Smith v. Reynolds, 3 McCrary, 157, 8 F. 696. A court in equity will not enforce the specific performance of a voluntary offer of sale without consideration. Black v. Cord, 2 Har. & G. 100; Tumlinson v. York, 20 Tex. 698; Minturn v Seymour, 4 Johns.Ch. 500; Thompson v. Attfeild, 1 Vern. 40; Longdale v. Longdale, Id. 456, and cases cited above; Smith v. Reynolds, 3 McCrary, 157, 8 F. 696; Hanson v. Michelson, 19 Wis. 499; Eaton v. Eaton, 15 Wis. 259; Stone v Hackett, 12 Gray, 230; Bowman v. Cunningham, 78 Ill. 48; Vasser v. Vasser, 23 Miss. 378; Dodd v. Seymour, 21 Conn. 479; Ewins v. Gordon, 49 N.H. 444. This offer to sell being voluntary, without consideration, could be retracted by Hodgdon at any time before a full, unconditional acceptance by Mansfield. He could vary his offer at any time before such acceptance. Railroad Co. v. Bartlett, 3 Cush. 226; Foster v. Boston, 22 Pick. 33; Fry, Spec.Perf. (3d Amer.Ed.) §§ 285, 286, 290, and cases there cited. The statement of Hodgdon, when the deed was left, on January 29th, for his examination, that he rejected the deed, which included the mountain lot, and that the same was not to be understood as included in his agreement, was a retraction of his offer, and a withdrawal of the same if it did ever include or ever was understood to include the mountain lot, as there was up to that time no acceptance; and, there being no consideration, he had a right to withdraw it. Fry, Spec.Perf. § 287. No formal notice of the retraction of a mere voluntary offer is necessary. Id. Equity will not enforce an offer of sale made under a mistake of parties, where the agreement is not certain, and their minds do not meet. Railroad Co. v. Babcock, 3 Cush. 228; 2 Story, Eq.Jur. 66; Fry, Spec.Perf. (3d Amer.Ed.) §§ 739, 751, 754, 774, and notes; Lynes v. Hayden, 119 Mass. 482, and cases cited; 2 Story, Eq.Jur. 78. The controlling words and description are, "The farm situate," etc., which words are definite, and prevail over the statement of the number of acres, and over parol evidence of one of the parties that it included something else. Winn v. Cabot, 18 Pick. 553; Melvin v. Proprietors, 5 Metc. 30; Worthington v. Hylyer, 4 Mass. 195; Bouv.Law Dict. tit. "Farm;" Doolittle v. Blakesley, 4 Day, 265. The specific performance of a contract in writing, concerning land, cannot be compelled in a court of equity, if the description of the land is so vague and uncertain as to require the receipt of parol evidence, and there is no reference in the memorandum to the other description which would make it certain. Jordan v. Fay, 40 Me. 130, Whiteaker v. Vanscholack, 5 Or. 118; Allen v. Webb, 64 Ill. 344; Blanchard v. Railroad Co., 31 Mich. 53; Coles v. Bowne, 10 Paige, 537. Hodgdon restricted his offer to 30 days. He intended, and it appears to have been understood, that it was limited to 30 days, and that the time was an essential part of the offer. Goldsmith v. Guild, 10 Allen, 239; Barnard v. Lee, 97 Mass. 92. This being a mere voluntary offer of sale, it was not binding upon Hodgdon until the full, distinct, unequivocal, and unconditional acceptance by Mansfield. Railroad Co. v. Bartlett, 3 Cush. 226; Foster v. Boston, 22 Pick. 33; Fry, Spec.Perf.§ 271, and sections following; Warner v. Willington, 3 Drew. 523; Gaskarth v. Lord Lowther, 12 Ves. 107; Thomas v. Blackman, 1 Colly. 301; Hazard v. Insurance Co., 1 Sum. 218; Carr v. Duval, 14 Pet. 77; Crossley v. Maycock, L.R. 18 Eq. 180. The leaving of a warranty deed at Hodgdon's house by Chapin was not a valid binding acceptance. Warner v. Willington, 4 Drew. 523, and cases cited above. The signing and leaving a deed by Hodgdon with Chapin, who in this matter was acting for Hodgdon, which was soon afterwards withdrawn, there being no delivery, and no payment of money, did not operate as an acceptance by Mansfield, and conferred no right upon Mansfield and Wood, under the offer of Hodgdon to Mansfield, which a court of equity will enforce. After the withdrawal of the offer by Hodgdon, and after his sale and conveyance to Allen, and after a suit at law for damages had been brought by Mansfield against Hodgdon, it was too late. A decree for specific performance is not a matter of strict right, but is discretionary with the court, in view of all the circumstances; and a decree will not be granted unless, upon all the facts disclosed, it is manifestly just and equitable to do so between all the parties before the court. Curran v. Water-Power Co., 116 Mass. 90.

George Putnam and Jabez Fox, for plaintiff.

The fact that the land lies in Maine is no objection to the jurisdiction. Brown v. Desmond, 100 Mass. 267, 269. Nor is it an objection to a bill for specific performance that suits at law for breach of the agreement have been begun. Connihan v. Thompson, 111 Mass. 270. Nor is it an objection that the obligation of the bond is purely unilateral. Railroad Corp. v. Babcock, 6 Metc. 346; Irvin v. Gregory, 13 Gray, 215; Eastman v. Simpson, 139 Mass. 348, 349. 1 N.E. 346. It is no objection that the plaintiff, after the agreement, conceded a strip of three acres to the defendant by parol. He is entitled to a conveyance of the rest. Park v. Johnson, 4 Allen, 259. An agreement to sell is an agreement to convey a good title free from all incumbrances. Swan v. Drury, 22 Pick. 485; Hurley v. Brown, 98 Mass. 545, 549; Linton v. Hichborn, 126 Mass. 32. An agreement in the singular number, signed by two persons, is the several agreement of each. In this case the agreement of "Nahum Chapin, mortgagee," would probably be held to extend only to his mortgage title. Hemmenway v. Stone, 7 Mass. 58; Bank v. Willis, 8 Metc. 504; Hooker v. Pynchon, 8 Gray, 550. As to sufficiency of description, see Mead v. Parker, 115 Mass. 413; Rankin v. Wood, 12 Gray, 34; Bacon v. Leonard, 4 Pick. 277. See, also, Aldrich v. Gaskill, 10 Cush. 155. We submit that the present case is fully covered by the decisions of this court. Carpenter v. Holcomb, 105 Mass. 280; Gormley v. Kyle, 137 Mass. 189; Lowe v. Harwood, 139 Mass. 133; Palmer v. Stockwell, 9 Gray, 237; Gage v. Coal Co., 124 Mass. 442; Todd v. Taft, 7 Allen, 371; 1 Benj. Sales, § 566; Sugd.Vend. (8th Amer.Ed.) 265. See, also, Webb v. Hughes, L.R. 10 Eq. 281. Barnard v. Lee, 97 Mass. 92, affirms the doctrine that in a case of this kind time will not ordinarily be treated as of the essence of the contract. One who buys land with notice that the seller has agreed to sell it to another, takes it, in equity, subject to such agreement, although he has no actual notice that the agreement is in writing. Connihan v. Thompson, 111 Mass. 270, 271; Bancroft v. Consen, 13 Allen, 50, 51; Hardy v. Reeves, 4 Ves. 466; Hansard v. Hardy, 18 Ves. 456. See, also, Hayward v. Cain, 110 Mass. 273.

OPINION

HOLMES, J.

This is a bill to enforce a covenant to sell the plaintiff "the farm situated in that part of Mount Desert island called 'Pretty Marsh,' and consisting of between two hundred and sixty and two hundred and seventy acres, and standing in the name of Benjamin Hodgdon, for the sum of fifteen hundred dollars cash, at any time within thirty days from the date hereof." The instrument is dated January 15, 1887, and is signed by the defendant Hodgdon. The defendant Clara E. Allen is a subsequent grantee of the premises. The judge who heard the witnesses made a decree for the plaintiff, and, the evidence having been reported, the defendants appealed.

Giving to the finding of the judge the weight which it must have, we think the evidence must be taken to establish the following facts: The instrument was sealed by Hodgdon, and has not been altered. The plaintiff expressed his election to purchase within the 30 days allowed. There was evidence of a message to that effect having been left at Hodgdon's house within 10 days. It appears that a blank deed to the plaintiff and another was left there about the same time, and there was evidence that a message was sent to Hodgdon to execute it if he found it correct. There was also evidence that the deed was returned unexecuted, with the message that Mrs. Hodgdon refused to sign it, and with no other objection in the first instance. These facts warranted a finding that sending the deed implied, and was understood to imply, notice that the plaintiff intended to buy, at least if the deed corresponded to the contract, (see Warner v. Willington, 3 Drew. 523, 533;) and perhaps whether it corresponded or not, as the message, even as testified to by Hodgdon, imported a willingness to correct mistakes. The defendant takes the ground that this deed did not correspond to the contract because the deed included a mountain lot which is alleged not to be included in the land described by the contract. The question whether that lot is included in the contract is also important, of course, in deciding what land, if any, the...