Porter v. Harrington

• Decision Date: 06 January 1928
• Citation: 262 Mass. 203
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: EDWARD W. PORTER v. MARGARET A. HARRINGTON & others.

262 Mass. 203

EDWARD W. PORTER v. MARGARET A. HARRINGTON & others.

Supreme Judicial Court of Massachusetts, Middlesex.

January 6, 1928

November 14, 1927.

Present: RUGG, C.

J., BRALEY, CROSBY CARROLL, & SANDERSON, JJ.

Equity Jurisdiction, Specific performance. Contract, Construction Performance and breach, Waiver by conduct. Waiver.

A contract in writing for the sale of land, payment for which was to be made by instalments at stated times, title to be given when all payments were made, provided: "That prompt performance and time are the nature and essence of this contract and each of its conditions, and therefore, if default of payment is made of any of said installments of said principal sum or interest and such default shall continue for a period of thirty-one (31) days after it becomes due, . . . at the option of the . . . [seller] all right, title, interest and claim of the . . . [buyer] in and to said described premises shall thereupon cease without any notice to the said . . . [buyer] notice, tender and demand being hereby waived by the . . . [buyer] and the . . [seller] shall thereupon and thereby be released from all obligations hereunder, and all moneys paid thereon previous to said default shall be and become the absolute property of the . . . [seller], as fixed, ascertained and liquidated damages for failure to perform this contract, and shall be absolutely irrevocable and beyond demand by the . . . [buyer] either at law or in equity; . . . that no waiver of a breach of any term or condition shall be a waiver of any other or subsequent breach of the same or of any other term or condition. . . ." Held, that the terms of the contract did not go so far as to prevent a court of equity, in a suit by the buyer for a conveyance in specific performance of the contract, from treating certain conduct of the seller as a waiver of the provisions of the contract above quoted.

Upon an appeal by the defendant from a final decree for the plaintiff in a suit in equity for specific performance of a contract by the defendant to convey land to the plaintiff, the record included all the evidence taken by a judge and a statement of his findings of fact. It appeared that the contract was for a conveyance when all instalments of the purchase price were paid, and that instalments were to be paid at specified times. The plaintiff had not made payments at the times stated, but, during three years, had paid one fourth of the purchase price and taxes on the land, and the delayed payments had been accepted by the defendant without making any objection or giving any warning against future delays. The plaintiff before bringing suit tendered payment of all arrearages. The defendant asserted that the plaintiff had forfeited under the contract by his nonperformance. The judge, on evidence warranting the findings, found that conduct of the defendant, in accepting delayed payments from the plaintiff, was such as to lull the plaintiff into a justifiable assumption that, notwithstanding the terms of the contract, he would be given indulgence in making his payments, and amounted to a waiver of the defendant's right to elect to close out all rights of the plaintiff without notice and without giving him a reasonable opportunity to save his payments already made by paying the balance due on his contract, and that the conduct of the defendant was harsh, oppressive and vindictive. There was no finding that the failure of the plaintiff promptly to make payments was intentional or wilful or in any way offensive, or that it had caused any loss to the defendant for which full compensation could not be made by payment of interest. Held, that

(1) The findings by the judge were in effect that the defendant by conduct had waived stipulations of the contract as to delay in instalment payments and consequent foreclosure of the plaintiff's rights without notice;

(2) Such a finding was not affected by the words of the contract concerning waiver by the plaintiff of the right to such notice;

(3) It would be unconscionable to permit the defendant, in view of his conduct, without notice or warning to insist upon strict performance of the contract and to forfeit all rights of the plaintiff;

(4) The decree was affirmed.

BILL IN EQUITY, filed in the Superior Court on November 26, 1926, for specific performance.

The suit was heard by Hammond, J., a stenographer having been appointed under G.L.c. 214, Section 24; Equity Rule 29 (1926), to take the evidence. Material evidence and facts found by the judge are stated in the opinion. A final decree was entered directing that, upon the payment by the plaintiff to the defendants of $620, the defendants should make the conveyance sought. The defendants appealed.

J.E. Crowley, for the defendants. L.G. Brooks, for the plaintiff.

RUGG, C.J. This is a suit in equity whereby the plaintiff seeks to compel the defendants specifically to perform an agreement to convey land to him. The judge by whom the case was heard made findings of fact and entered a final decree in favor of the plaintiff. The case comes before us on appeal by the defendants with a full report of all the evidence. The findings of fact are amply supported by the evidence, and must be accepted as true. Briefly stated, those facts are that in 1919, by a written contract, the plaintiff agreed to buy and the defendants to sell two lots of land for a specified sum, of which $60 was the initial payment, the balance being payable at the rate of $10 each month. In February, 1922, the defendants, for the sums already paid conveyed one of these lots to the plaintiff, the contract remaining in force as to the other lot. On January 1, 1923 the balance charged against the plaintiff upon the books of the defendants was $578.54. The plaintiff made no payments in 1923. In 1924 he paid $60 in instalments, besides the taxes for that year. In 1925 he paid $60 in instalments. On March 25, 1926, he paid $40 in one sum. This was the last payment made by him. On November 9, 1926, the plaintiff offered to pay $30 upon the contract, but was informed by one of the defendants that they had, on August 1 previous, "exercised the option and decided to close the account." The plaintiff has been ready and before filing this bill offered to pay the entire amount due upon his contract, but the defendants have declined to accept it upon the ground that on August 1, 1926, they exercised their option under the contract to cancel the same for default of the plaintiff in failing to keep up the payments, and claim the right to hold the money paid in by the plaintiff as liquidated...