Perkins v. Penney

• Decision Date: 25 May 1978
• Citation: 387 A.2d 205
• Parties: Frederick V. PERKINS and Patricia C. Perkins v. George L. PENNEY and Betty J. Penney.
• Court: Maine Supreme Court

Page 205

387 A.2d 205

Frederick V. PERKINS and Patricia C. Perkins v. George L. PENNEY and Betty J. Penney.

Supreme Judicial Court of Maine.

May 25, 1978.

Locke, Campbell & Chapman by Nicholas M. Lanzilotta, Augusta (orally), for plaintiffs.

Smith & Stein by Jeffrey A. Smith, Hallowell (orally), for defendants.

Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY, GODFREY and NICHOLS, JJ.

WERNICK, Justice.

On October 20, 1976, plaintiffs Frederick V. Perkins and Patricia C. Perkins commenced a civil action in the Superior Court (Kennebec County) against defendants George L. Penney and Betty J. Penney. Count I of plaintiffs' complaint sought specific performance (or, in the alternative, damages for breach) of an alleged "agreement in the nature of a bond for a deed" concerning defendants' dairy farm comprising approximately 260-270 acres of real estate in Belgrade, Maine.

After completion of the pleadings and the filing of affidavits, plaintiffs moved for summary judgment in their favor. On February 23, 1977 the Justice presiding in the Superior Court granted the motion and ordered entry of judgment that defendants specifically perform the agreement by conveying "by good and sufficient deed, a merchantable title to the premises described in paragraph # 1 of the land sales contract between the parties." Defendants have appealed from this judgment, as entered. ¹

We deny the appeal.

The agreement which is the subject of this case was made by the parties in November, 1970. Defendants agreed to convey "by good and sufficient deed a merchantable title" to their dairy farm upon payment in full of an unsecured promissory note signed by plaintiffs in which plaintiffs promised to pay the designated purchase price of the dairy farm in monthly installment payments. Plaintiffs had the

"right to anticipate and pay any and all installment payments at or before the time the same shall become due except that there shall be no anticipation before January 1, 1971." ²

A separate instrument incorporated by reference in the sale-purchase agreement provided, as here relevant, that:

"(2) Perkins agrees to carry on and work said property as a dairy farm properly planting and harvesting all crops necessary for the operation of said farm and properly care for said dairy and operate in a good farm-like manner in acceptable practices of good husbandry, and further agrees that no green growing or standing timber or wood shall be cut or carried away from the farm except such as may be necessary for repairs of the buildings on the farm or for other use on the farm without the Penneys' prior written consent.

"(3) Perkins shall be responsible for all maintenance and repairs on the property except usual wear and tear . . . and all repairs shall be done in a good and workmanlike manner in compliance with all applicable laws . . . and (Perkins) shall maintain insurance on the premises for the coverages presently held by Penney and pay all premiums therefor.

"(4) Perkins shall not make any alterations, additions, or other modifications to the buildings on said premises except for minor changes neither reducing the value of the buildings nor impairing their structural strength without on each occasion first obtaining Penneys' written consent.

"(6) It is mutually agreed that time is of the essence in this contract and that in the event Perkins shall fail to pay any of the monies due by virtue of this contract or perform any of the other obligations herein the said Penney shall foreclose this agreement according to law and may also proceed against said Perkins for breach of this contract or enforcement thereof."

On September 15, 1976, defendants filed a "declaration" in the Kennebec County Registry of Deeds and sent a copy to the plaintiffs. It stated that plaintiffs had violated the terms and conditions of the agreements of November 1970, and by virtue thereof defendants were no longer obligated to convey the realty to plaintiffs, plaintiffs' breach having caused any such prior obligation to be null and void.

In their answer and affidavits in response to plaintiffs' motion for summary judgment, defendants asserted that on at least four occasions after November 1970 plaintiffs had been notified that defendants claimed that plaintiffs had violated provisions of the agreement. Defendants described these asserted breaches as plaintiffs' failure to repair, maintain and farm in a husbandlike manner and plaintiffs' making unauthorized alterations of the premises. However, defendants admitted that from November 1970 to September 15, 1976 plaintiffs had made all of the payments required under the terms of the promissory note. ³

In their complaint, and the affidavits filed in support of their motion for summary judgment, plaintiffs stated that on October 4, 1976 they made a legal tender of the entire balance due on the note and have remained at all times ready, willing and able to pay said balance.

In their answer defendants denied that plaintiffs had made a tender of the unpaid balance of the note on October 4, 1976. However, defendants' affidavits assert only that no tender had been made before September 15, 1976, the date on which defendants filed the "declaration" as to breaches by plaintiffs. Before us, defendants have indicated that any defects in the manner of plaintiffs' making tender could be deemed eliminated, at least to the satisfaction of defendants, by having the judgment for specific performance (if such a judgment is held warranted) modified to require plaintiffs to make payment of the entire balance due on the note contemporaneously with defendants' giving a good and sufficient deed.

In these circumstances we decide that the presiding Justice acted correctly in ruling by summary judgment that plaintiffs had tendered the amount due on the note. Since the presiding Justice could have required, and we have the authority to require, that a judgment for specific performance specify that contemporaneously with defendants' giving a deed, plaintiffs pay the full amount due on the note, whatever facts may have been in dispute between the parties as to the manner of plaintiffs' making tender lose their character as issues of material fact. Rule 56 M.R.Civ.P.

We therefore address the question whether the tender made by plaintiffs was timely. This, in turn, resolves into the question of law whether the filing of the September 15, 1976 "declaration" in the Registry of Deeds terminated the right of plaintiffs thereafter to tender. The presiding Justice ruled that such a subsequent tender by plaintiffs would cure ...