McCormick v. Proprietors of Cemetery of Mt. Auburn

• Decision Date: 26 March 1934
• Citation: 285 Mass. 548,189 N.E. 585
• Parties: McCORMICK v. PROPRIETORS OF CEMETERY OF MT. AUBURN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

285 Mass. 548

189 N.E. 585

McCORMICK

v.PROPRIETORS OF CEMETERY OF MT. AUBURN.

Supreme Judicial Court of Massachusetts, Suffolk.

March 26, 1934.

Appeal from Superior Court, Suffolk County; Gray, Judge.

Suit by Oran McCormick against the Proprietors of the Cemetery of Mt. Auburn, in which defendants filed a counterclaim for damages.From an adverse interlocutory and final decree, plaintiff appeals.

Judgment in accordance with opinion.

L. K. Clark, of Boston, for appellant.

C. P. Bartlett, of Boston, for appellee.

LUMMUS, Justice.

The defendant, a charitable corporation, is the proprietor of a cemetery in which private individuals may acquire title to lots to be used subject to its rules and regulations.The plaintiff is the owner of one of the lots, and by contract with him the defendant became bound in 1924 to furnish ‘perpetual care’ by keeping ‘in suitable condition and preservation the sodding or turfing’ on the lot.In 1925, the plaintiff desired to erect a costly and artistic monument to serve as a memorial for himself, for his second wife, Patti McCormick, and for his first and divorced wife, Lena McCormick.Both women had recently died.The monument was to consist of a central altar twelve feet in height, flanked by rectangular stones of lesser height, each of which stones was to bear the name of one of the late wives and was to be surmounted by a bronze urn.The design and proper setting of the monument was and is a matter of great sentimental interest and value to the plaintiff.

On July 18, 1925, the defendant entered into a written contract with the plaintiff for the setting of the monument, by which the defendant agreed to excavate for and build the foundation and granite floor, and to transport and set up the monument, all for the sum of $1,148.The contract did not show the grade of the lot or the grade at which the monument was to be set, but the parties agree that the monument was to be set back nearly twenty feet from the ‘avenue’ on which the lot fronted.The judge ruled that such a contract is ‘fully performed when the monument is set in accordance with the plans on the lot at its existing grade and that the contract did not oblige the defendant to change the existing grade.’

The master, however, had found that some days after the written contract was executed, but before the work was done, the assistant superintendent of the defendant on behalf of the defendant, orally agreed with the plaintiff's agent that the monument should be set nearly eight inches above the existing surface of the lot, the grade of the lot being raised correspondingly; and that, by direction of the superintendent and in knowing disregard of the oral agreement, the monument was set at the existing grade.The defendant's exceptions to these findings were sustained, and thereby it was ruled in effect that they could not be considered in the decision of the case.The finding of the master in his supplemental report that the assistant superintendent was authorized to make the oral agreement relied on by the plaintiff, was permitted to stand, as was his finding that the monument is less effective in appearance than it would have been if set as the assistant superintendent agreed.

We think that the judge was in error in sustaining these exceptions to the master's report.Granted that the written contract was sufficiently complete and definite, and bound the defendant only to set the monument at the grade of the lot, it could be modified orally.By the oral agreement between the plaintiff's agent and the defendant's assistant superintendent, the defendant was relieved from the duty to set, and the plaintiff from the duty to pay for, a monument at the grade of the lot, and their respective duties were made to relate to a monument to be set at a different grade.This was a sufficient consideration to support the modified contract, without regard to the question which mode of performance was the more onerous.Hanson & Parker, Ltd., v. Wittenberg, 205 Mass. 319, 326, 91 N. E. 383;Torrey v. Adams, 254 Mass. 22, 26, 27, 149 N. E. 618, 43 A. L. R. 1447;Narragansett Amusement Co. v. Riverside Park Amusement Co., 260 Mass. 265, 279, 157 N. E. 532;Tashjian v. Karp, 277 Mass. 42, 177 N. E. 816;De Blois v. Boylston & Tremont Corp., 281 Mass. 498, 508, 509, 183 N. E. 823;Zarthar v. Saliba, 282 Mass. 558, 560, 185 N. E. 367;Savage Arms Corp. v. United States, 266 U. S. 217, 45 S. Ct. 30, 69 L. Ed. 253.The interlocutory decree of July 3, 1933, is to be reversed, in so far as it sustains exceptions of the defendant to the master's report.

The next question is whether the court ought to enforce specifically the contract of the defendant to set the monument at a higher level than that at which it actually was set.It has often been said that specific performance is not a matter of strict and absolute right.Forman v. Gadouas, 247 Mass. 207, 211, 142 N. E. 87;Florimond Realty Co., Inc., v. Waye, 268 Mass. 475, 478, 167 N. E. 635;Shikes v. Gabelnick, 273 Mass. 201, 207, 173 N. E. 495, 87 A. L. R. 1339;Schmidt v. Barr, 333 Ill. 494, 165 N. E. 131,65 A. L. R. 7.One reason for denying specific performance of a valid contract is stated in American Law Institute, Restatement of the Law of Contracts(1932)§ 371, as follows: ‘Specific enforcement will not be decreed if the performance is of such a character as to make effective enforcement unreasonably difficult or to require such long-continued supervision by the court as is disproportionate to the advantages to be gained from such a decree and to the harm to be suffered in case it is denied.’See, also, Williston, Contracts, § 1423.Not want of power, but practical wisdom, stays the hand of the court.Standard Fashion Co. v. Siegel-Cooper Co., 157 N. Y. 60, 68,51 N. E. 408,43 L. R. A. 854, 68 Am. St. Rep. 749.Where a decree for specific performance would fasten upon the court the duty of supervising over a long period work involving continuous skill and judgment, the court will not undertake the task.Rutland Marble Co. v. Ripley, 10 Wall. 339, 19 L. Ed. 955;Arizona Edison Co. v. Southern Sierras Power Co. (C. C. A.)17 F.(2d) 739;Smart v. Boston Wire Stitcher Co., 50 R. I. 409, 148 A. 803.Courts have declined to enforce specifically contracts to build railroads.Kansas & Eastern Railroad Construction Co. v. Topeka, Salina & Western Railroad Co., 135 Mass. 34, 46 Am. Rep. 439;Ross v. Union Pacific RailwayCo., Woolw. 26, Fed. Cas. No. 12,080.See, also, Texas & Pacific Railway Co. v. Marshall, 136 U. S. 393, 10 S. Ct. 846, 34 L. Ed. 385;Prospect Park a Coney Island Railroad Co. v. Coney Island & Brooklyn Railroad Co., 144 N. Y. 152, 39 N. E. 17,26 L. R. A. 610.But where performance will be complete within a reasonably short time, contracts have been specifically enforced for the manufacture of chattels not requiring unusual skill (Adams v. Messinger, 147 Mass. 185, 17 N. E. 491,9 Am. St. Rep. 679), the installation of heating apparatus for the benefit of a lessee (Jones v. Parker, 163 Mass. 564, 40 N. E. 1044,47 Am. St. Rep. 485), and the furnishing of heat to a tenant in an office building.New York...