Moskow v. Burke

• Decision Date: 27 May 1926
• Citation: 255 Mass. 563,152 N.E. 321
• Parties: MOSKOW v. BURKE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

255 Mass. 563

152 N.E. 321

MOSKOW

v.BURKE.

Supreme Judicial Court of Massachusetts, Suffolk.

May 27, 1926.

Exceptions from Superior Court, Suffolk County; Waite, Judge.

Action of contract by Jay I. Moskow against Thomas F. Burke to recover for alleged breach of written contract. Verdict was directed for defendant, and plaintiff excepts. Exceptions sustained.

J. Hoy, A. Moskow, and F. M. Ryder, all of Boston, for plaintiff.

W. H. Sullivan, of Boston, for defendant.

CROSBY, J.

This is an action to recover damages for the alleged breach of a written contract, in which the defendant agreed to convey to the plaintiff certain real estate. The defendant's answer as amended pleads a general denial, and alleges that on March 12, 1921, the day on which the premises were to be conveyed, his title to the premises was defective, and that he had no title thereto then or at any time during the existence of the agreement. The statute of frauds has not been pleaded.

The agreement is dated February 12, 1921; the only pertinent parts thereof being paragraphs 2, 3 and 7, as follows:

‘2. Said premises are to be conveyed on or before March 12, 1921, 4 p. m., by a good and sufficient warranty deed of the party of the first part conveying a good and clear title to the same and free from all incumbrances and municipal liens both of record and in fact, excepting the following, viz.:

‘(a) A first mortgage held by a bank in the sum of sixty-seven thousand five hundred ($67,500) dollars bearing interest at the rate of 5 1/2 per cent. per annum, and maturing in August, 1921. Said Burke hereby agrees to convey these premises subject to this mortgage of $67,500 extended by the bank for three years from the date of the expiration of the present mortgage, i. e., extended for three years from August, 1921, and at a rate of interest not exceeding 6 per cent. per annum, for such extended term.

‘3. For such deed and conveyance subject as aforesaid, the party of the second part shall pay the sum of thirteen thousand five hundred ($13,500) dollars, of which three hundred ($300) have been paid to Burke this day, the balance of thirteen thousand two hundred ($13,200) dollars shall be paid upon the delivery of said deed.’

‘79 Should the title to the premises be defective in any way, then said deposit of three hundred ($300) dollars is to be returned by Burke to Moskow and thereupon this agreement shall be at an end, and each of the parties shall be under no further or other obligation to the other in law or equity.’

At the time of the making of the agreement the defendant was a secoond mortgagee in possession of the premises. Under the agreement he bound himself (1) to obtain title to the property so that he could convey it to the plaintiff on or before March 12, 1921; and (2) that he would procure an extension of the first mortgage for three years from August 1, 1921, at a rate of interest not exceeding 6 per cent. per annum for such extended term. The plaintiff testified in substance that on March 12 he told the defendant that he was ready to take the title, that the defendant replied that he had not secured the extension of the first mortgage and had not foreclosed his mortgage; that he said he was going to foreclose the mortgage on the following Monday; that if he did not get the extension he would return the $300 paid; that the plaintiff told him that he did not want the $300, but wanted the property; that the defendant replied, ‘Come and see me after I foreclose,’ and also said, ‘I haven't foreclosed yet; you need not go to the registry because I am not going to pass papers today.’ The defendant as mortgagee advertised the property for sale on February 19, 21, and March 5, the sale to be held on March 14. On the last named date he bid in the property for $10,000. The plaintiff jurther testified in substance that on March 15 he asked the defendant if he was ready to complete the sale and that the defendant replied, ‘I have foreclosed, but I haven't got an extension yet, and I can't get an extension, and so I will give you back the $300;’ that the plaintiff said he did not want the $300, but wanted the property, ‘extension or no extension’; that the defendant then said, ‘Well, come back in a couple of days.’ The jury could have found that the plaintiff was ready and able on March 12, 1921, to carry out the agreement in accordance with its terms, and that he was also ready and able to carry out the agreement as modified up to the day the defendant finally refused to convey the property to him.

[4] As this was an action at law the time of performance was of the essence of the contract. Preferred Underwriters, Inc., v. New York, New Haven & Hartford Railroad, 243 Mass. 457, 137 N. E. 590. Yet the jury could have found upon the testimony of the plaintiff that it was mutually orally agrced by the parties that the time named in the contract for such performance had been modified by an extension of the time for performance. The parties could at any time before breach orally modify the time and manner of performance fixed by the contract which would not be within the statute of frauds. Stearns v. Hall, 9 Cush. 31;Cummings v. Arnold, 3 Metc. 486,37 Am. Dec. 155;Hastings v. Lovejoy, 140 Mass. 261, 264, 2 N. E. 776,54 Am. Rep. 462;Conroy v. Teomay, 234 Mass. 384, 386, 125 N. E. 568;Weinstein v. Miller, 249 Mass. 516, 521, 144 N. E. 387.

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