Olszewski v. Sardynski

Decision Date12 September 1944
Citation56 N.E.2d 607,316 Mass. 715
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
PartiesALEXANDRIA OLSZEWSKI v. PETER SARDYNSKI & another.

April 6, 1944.

Present: FIELD, C.

J., LUMMUS, QUA DOLAN, & WILKINS, JJ.

Equity Jurisdiction, Specific performance, Remedy at law. Contract Sale of real estate. Equity Pleading and Practice, Appeal Demurrer.

Appeals from an interlocutory decree, entered after a full hearing of evidence but without decision thereon in a suit in equity for specific performance of a contract in writing, sustaining a demurrer to the bill filed by leave in the course of the hearing, and from a final decree dismissing the bill, presented to this court only the question whether the bill stated a case for specific performance; upon reversal of the decrees because the bill did state such a case, the suit was remanded to the

Superior Court without determination whether on the evidence, which was reported, the plaintiff was entitled to relief.

A demurrer to a bill in equity by the owner of land for specific performance of a contract in writing to purchase should not have been sustained either for want of equity or on the ground that the plaintiff had a plain, adequate and complete remedy at law where the bill contained no averment of fact showing ground for refusing equitable relief in the specific case, notwithstanding that the specific performance sought would consist entirely of the payment of money by the defendant.

BILL IN EQUITY, filed in the Superior Court with a writ dated April 13, 1943.

The case was heard by Swift, J., by whose order, in the circumstances stated in the opinion, there were entered an interlocutory decree sustaining the demurrer and a final decree dismissing the bill "without prejudice to any rights which the plaintiffs [sic] may have in an action at law." The plaintiff appealed from both decrees.

E. C. Jacobs, for the plaintiff.

R. L. Sisk, (H.

P. Lesburt with him,) for the defendants.

LUMMUS, J. This is a bill by a vendor of a lot of land at the corner of Summer and Burns streets in Lynn on which is a three-story frame building, to require specific performance by the defendant vendees. The bill alleged that the parties entered into a written contract, a copy of which was annexed, for sale and purchase for $11,000, of which $200 was paid as a deposit $8,000 was to be paid by giving the vendor a purchase money mortgage, and the giving the vendor a purchase money mortgage, and the balance of $2,800 was to be paid in cash. The bill alleged that the defendants refused to perform the contract.

The defendants answered on June 17, 1943. A hearing on the merits began on December 14, 1943, and the judge ordered the evidence reported under Rule 76 of the Superior Court (1932). Soon after the hearing began counsel agreed, with the approval of the judge, to an amendment of the answer and to the filing of a separate demurrer to the bill because of want of equity and the existence of a plain, adequate and complete remedy at law. These changes in the pleadings were made on the same day. The hearing of the evidence proceeded to its conclusion.

It is permissible, and sometimes wise, for a judge to hear an equity case on its merits, postponing consideration of a demurrer. Pearson v. Mulloney, 289 Mass. 508 , 511. Peterson v. Hopson, 306 Mass. 597 , 610. The purpose of such a course is to base the decision on facts rather than words. A decree dismissing a bill because the facts proved entitle the plaintiff to no relief would in practice foreclose amendment and end the litigation. On the other hand, proof of facts calling for relief doubtless would lead to any needed amendment of the bill. In the present case, for some reason not apparent to us, the judge heard the evidence, but made no decision upon it, and based the dismissal of the bill upon the sustaining of the demurrer. Therefore the question immediately before us on the plaintiff's appeal is whether the bill states a case for specific performance.

In contending that the plaintiff has a plain, adequate and complete remedy at law, the defendants rely upon Jones v. Newhall, 115 Mass. 244 , where specific performance was denied to a vendor on that ground. But in that case there was a statute expressly limiting equity jurisdiction to cases in which there was no such remedy at law (Parkway, Inc. v. United States Fire Ins. Co. 314 Mass. 647 , 650, 651), and equity could give the vendor no relief except that of requiring the payment of certain instalments that could be collected in full at law. That case does not control this one. See Noyes v. Bragg, 220 Mass. 106 , 109.

The facts that the plaintiff is the vendor and that performance by the vendee would consist entirely or primarily of the payment of money have never prevented specific performance. Commonly the remedy at law of a vendor is not adequate. Every piece of real estate has some unique disadvantage as well as advantage. The eagerness of buyers to acquire some properties is matched by the joy with which sellers part with others. Ownership of real estate is burdensome even when profitable. It hampers mobility. Years may be required to find a buyer. When at last a buyer is found, and a contract made which is broken by the buyer, the owner, with the real estate still on his hands, finds that at law he can recover only the excess, if any, of the price over the value as judicially appraised. Brigham v. Evans, 113 Mass. 538 . Boyden v. Hill, 198 Mass. 477 , 486. Williston, Contracts (Rev. ed. 1937) Section 1399. For these reasons, to say nothing of more technical ones (Fry, Spec. Perf. [6th ed. 1921] Section 72), one of which was rejected in Eckstein...

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6 cases
  • Pineo v. White
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • December 2, 1946
    ...may be permitted if necessary to conform to the facts proved. Pearson v. Mulloney, 289 Mass. 508, 511, 194 N.E. 458;Olszewski v. Sardynski, 316 Mass. 715, 717, 56 N.E.2d 607. The judge did not adopt this course. After sustaining the demurrer, there being no attempt to amend the bill, the ju......
  • Pineo v. White
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • December 2, 1946
    ... ... necessary to conform to the facts proved. Pearson v ... Mulloney, 289 Mass. 508, 511. Olszewski v ... Sardynski, 316 Mass. 715 , 717. The judge did not adopt ... this course. After sustaining the demurrer, there being no ... attempt to amend ... ...
  • Frost v. Kendall
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • January 8, 1947
    ... ... convey land. G. L. (Ter. Ed.) c. 214, Section 1. Noyes v ... Bragg, 220 Mass. 106 ... Olszewski v. Sardynski, ... 316 Mass. 715 ... Probate courts have the power to require ... specific performance of a written contract for the conveyance ... ...
  • Rigs v. Sokol
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 4, 1945
    ...was heard on the merits-a practice that we recently said is permissible and sometimes wise for a judge to adopt. Olszewski v. Sardynski, 316 Mass. 715, 717, 56 N.E.2d 607. The case was referred to a master whose report (to which there are no exceptions) was confirmed by an interlocutory dec......
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