Mason v. Albert

• Citation: 243 Mass. 433,137 N.E. 661
• Parties: MASON v. ALBERT.
• Decision Date: 05 January 1923
• Court: United States State Supreme Judicial Court of Massachusetts

243 Mass. 433

137 N.E. 661

MASON

v.ALBERT.

Supreme Judicial Court of Massachusetts, Bristol.

Jan. 5, 1923.

Appeal from Superior Court, Bristol County; Hugo A. Dubuque, Judge.

Suit for specific performance of parol contract by Joseph Mason against Annie M. Albert. From a decree for plaintiff, defendant appeals. Affirmed.

Plaintiff rejected a deed tendered because it reserved a right of way. The answer denied the making of the contract and alleged that, if any agreement was made, the terms of sale included such reservation, and also set up the statute of frauds. The case was referred to a master, who found that the oral agreement was to convey without any incumbrance except taxes. Defendant excepted to certain findings, and also excepted for failure to report more definitely the understanding or agreement of the parties relative to the right to use a right of way, and the failure to find definitely whether defendant's acts in refusing to convey was in the nature of a fraud, and also to the master's ruling excluding certain evidence concerning the way in which access was previously had to the premises for the benefit of which the right of way was desired. Defendant also made a motion to recommit for more specific findings and report of so much of the evidence as bore upon certain matters. The motion to recommit and exceptions were overruled, and the report confirmed.

Wood & Brayton, of Fall River, for appellant.

Frank A. Pease and Thomas D. Sullivan, both of Fall River, for appellee.

PIERCE, J.

The bill seeks a specific performance of a verbal contract for the sale of land founded upon part performance.

It appears by the master's report that the plaintiff and defendant agreed to buy and sell the premises on Plymouth avenue, Fall River, described in the first paragraph of the amended bill of complaint; that the premises were to be conveyed free of all encumbrances, except the taxes for the year 1920, for the purchase price of $3,250; that the plaintiff was to pay the defendant $50 for the privilege of entering a private sewer of the defendant on Plymouth avenue, and was to reimburse the defendant for interest prepaid on a mortgage on the premises from the time the plaintiff took possession; that the plaintiff on May 27, 1920, paid the defendant $100 on account of the agreed purchase price and was given a receipt therefor; that on the same day the defendant gave the key of the house and possession of the premises to the plaintiff; that the plaintiff has continued to occupy the property with the intention to make of it a permanent home, it being peculiarly suited to the needs of himself and family; that he signified his intention to the defendant of making repairs and improvements to the property; that the defendant approved and suggested the names of contractors to do the work; that with the knowledge and acquiescence of the defendant the plaintiff installed a bath and toilet room, with the usual fixtures, to replace an outhouse theretofore in use, set up a new sink in the kitchen and connected the premises with the city water and the private sewer; that he whitewashed two rooms, painted the sink room, parlor, front hall and stairs, varnished and papered the kitchen, repaired the fence, improved the land and graded it to prevent leakage of water into the cellar, repaired conductor pipes and refitted doors, all of a total expenditure of $458.

June 2, 1920, the plaintiff made a second payment of $100 on account of the purchase price, and it was agreed that the final payment should be made when the plaintiff could dispose of shares in a co-operative bank which he owned; this he did some time prior to the 2d day of July, 1920. On that day he went to the defendant's house with the money, told her he was ready to pay the money, ‘and either showed the money to her or made it evident that he had it with him.’ The defendant told the plaintiff she would not take the money that night but that...