Nichols v. Sanborn
| Decision Date | 27 November 1946 |
| Citation | 320 Mass. 436,70 N.E.2d 1 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | NICHOLS v. SANBORN. |
OPINION TEXT STARTS HERE
Action by Raymond E. Nichols against Martha H. Sanborn for specific performance of a contract of sale of realty. From a final decree from plaintiff, the defendant appeals.
Affirmed.Appeal from Superior Court, Middlesex County; Cabot, Judge.
Before FIELD, C. J., and LUMMUS, QUA, DOLAN, and SPALDING, JJ.
J. W. Killam, Jr., of Melrose, for plaintiff.
E. H. R. Burroughs, of Boston, for defendant.
On April 18, 1938, the plaintiff entered into a written contract under seal with Kirke P. Sanborn, the defendant's father, by which the plaintiff was to occupy a house and the lot upon which it stood, in Reading, paying $15 a month as rent besides taxes, water rates, and other municipal charges, and was to have the right to buy the premises within four years after April 18, 1938, for $2,300, less the rental payments of $15 a month that might have been paid.
Kirke P. Sanborn died on August 8, 1939, and the premises descended to the defendant, his only heir. The defendant recognizedthe validity of the contract. The plaintiff, before April 18, 1942, made considerable improvements upon the premises which he was occupying. In April, 1942, the plaintiff was in default in the payment of the local real estate tax for 1941 upon the premises, and the parties agreed orally that after the taxes for 1941 and 1942 had been paid the plaintiff was to pay as rent an additional $10 a month, in lieu of paying the taxes, and that the time for buying the property should be extended until the rental payments should amount to $2,300 or until the defendant should request payment of any unpaid balance. In September, 1943, the parties agreed that payment of the taxes for 1941 and 1942 might be postponed, and the available money used instead in putting a new roof on the house, which was done at an expense of nearly $300. The arrears of taxes, which had been paid by the defendant, were repaid to her by the plaintiff in June, 1944. In June, 1945, the defendant notified the plaintiff that she wished him to complete the purchase before the end of 1945. The plaintiff has paid $1,290 as rent, and prior to November 21, 1945, was arranging to obtain a purchase money mortgage for the balance due.
On November 21, 1945, the defendant notified the plaintiff that she had decided not to sell the premises to him, and had contracted to sell them to a stranger. On November 24, 1945, the plaintiff filed this bill for specific performance. The answer among other things set up the statute of frauds and laches. The judge entered a final decree for the plaintiff, with costs, and the defendant appealed. The case comes here upon the pleadings and a report of material facts (Turner v. Morson, 316 Mass. 678, 680, 681, 57 N.E.2d 18), the appellant having waived her right to a report of the evidence. Wyness v. Crowley, 292 Mass. 459, 196 N.E. 924.Hubbard v. Southbridge National Bank, 297 Mass. 17, 19, 20, 8 N.E.2d 351.Harlow Realty Co. v. Whiting, 308 Mass. 220, 223, 31 N.E.2d 928.Gordon v. Guernsey, 316 Mass. 106, 108, 55 N.E.2d 27.
Although in equity time ordinarily is not of the essence of a contract to buy and sell land (Gevalt v. Diwoky, 319 Mass. 715, 716, 67 N.E.2d 481), a person given an option to buy land must within the time limited elect to exercise it. Boston & Worcester Street R. v. Rose, 194 Mass. 142, 149, 80 N.E. 498.Morgan v. Forbes, 236 Mass. 480, 483, 128 N.E. 792.Donovan Motor Car Co. v. Niles, 246 Mass. 106, 107, 140 N.E. 304.Cobb v. Library Bureau, 264 Mass. 431, 436, 162 N.E. 902.Hunt v. Bassett, 269 Mass. 298, 302, 168 N.E. 783.Kelley v. Ryder, 276 Mass. 24, 26, 27, 176 N.E. 516.Aronson v. Sol. & S. Marcus Co., 292 Mass. 389, 395, 396, 198 N.E. 654. If within the time limited the buyer elects to exercise the option it may be specifically enforced. Rigs v. Sokol, 318 Mass. 337, 344, 61 N.E.2d 538;Judkins v. Charette, 255 Mass. 76, 81, 151 N.E. 81, 45 A.L.R. 1. And bringing a suit for specific performance is an election to exercise the option. O'Brien v. Boland, 166 Mass. 481, 483, 44 N.E. 602.Nickerson v. Bridges, 216 Mass. 416, 421, 103 N.E. 939.
In the present case the option was not exercised within the four years originally limited. But by oral agreement the option was...
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Hickey v. Green
...321 Mass. 721, 724, 75 N.E.2d 637 (1947). Compare Gadsby v. Gadsby, 275 Mass. 159, 167-168, 175 N.E. 495 (1931); Nichols v. Sanborn, 320 Mass. 436, 438-439, 70 N.E.2d 1 (1946). Frequently there has been an actual change of possession and improvement of the transferred property, as well as f......
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...22, 322 N.E.2d 187, that notice "made unnecessary any tender of performance or offer of performance" by Blum. See Nichols v. Sanborn, 320 Mass. 436, 438, 70 N.E.2d 1 (1946). The judgment entered in the consolidated actions is reversed. Blum, having alleged in substance that she is ready, wi......
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