Preferred Underwriters, Inc. v. New York, N.H.&H.R. Co.

• Decision Date: 05 January 1923
• Citation: 137 N.E. 590,243 Mass. 457
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: PREFERRED UNDERWRITERS, Inc., et al. v. NEW YORK, N. H. & H. R. CO. et al.

243 Mass. 457

137 N.E. 590

PREFERRED UNDERWRITERS, Inc., et al.

v.NEW YORK, N. H. & H. R. CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 5, 1923.

Appeal from Supreme Judicial Court, Suffolk County.

Suit for specific performance by the Preferred Underwriters, Inc., and another, against the New York, New Haven & Hartford Railroad Company and others. From a final decree dismissing the bill, plaintiffs appeal. Affirmed.

Under the contract, a payment was to be made May 15th, and it was not made or tendered, and thereafter the railroad company sold the property to a third person. The bill of complaint alleged that time was not of the essence of the contract, and that complainants were given no notice that performance on the particular date was demanded. The court found that on May 3d plaintiffs' representative was notified that the railroad would expect her to comply with the terms of the contract on May 15th, and ruled that time was not of the essence of the contract as it was drawn, when considered apart from the circumstances, but that under the circumstances, including such notice, time was of the essence and that such notice was reasonable.Wm. Frye White, of Boston, for appellants.

John L. Hall and Stuart C. Rand, both of Boston, for appellees.

PIERCE, J.

This is an appeal by the plaintiffs from a decree of a single justice of this court dismissing their bill, which seeks to enforce the specific performance of a written agreement of the defendants to convey to the Bostonian, Inc., a corporation, certain real estate on Arlington and Providence streets, Boston, particularly described in a deed delivered in escrow to the State Street Trust Company of Boston, which deed, by the terms of the agreement, was to be delivered to the Bostonian, Inc., by the trust company on the performance of the agreement to be observed and performed by the Preferred Underwriters, Inc.

The plaintiffs not being able, ready and willing to fulfill their obligation to pay the purchase price for the conveyance on the day named in the contract of sale and purchase, the defendants treated the contract as ended and without notice to the plaintiffs entered into a contract to convey the land to Hotel Statlers Company for a price less than that which the plaintiffs had agreed to pay. At law time is always of the essence of a contract; in equity it is not, except in cases where there is an express agreement that it shall be so treated, or there is a clear and necessary implication from the circumstances that such was the intent of the parties to the agreement, or where there was a notice to the party in default to perform within a reasonable time. Mansfield v. Wiles, 221 Mass. 75, 82, 108 N. E. 901;King v. Connors, 222 Mass. 261, 110 N. E. 289;Morgan v. Forbes, 236 Mass. 480, 128 N. E. 792; Parkin v. Thorold, 16 Beav. 59; 1 Ames, Cases in Equity Jurisdiction, 327, and cases cited in notes.

[4] It is to be observed that the right of either party to give a notice which shall bind the other to a performance of the contract at a specified time is not a right to change the construction or add terms to that contract, but is a right which can be exercised with effect in equity upon the relation of the parties only when the notice follows a default in performance on the day named in the contract, by the party upon whom the notice is served. Fry on Specific Performance, 1092; Mansfield v. Wiles, supra; Fuller v. Hovey, 2 Allen, 324, 79 Am. Dec. 782;Asia v. Hiser, 38 Fla. 71, 20 South. 796; Taylor v. Brown, 2 Beav. 180; King v. Wilson, 6 Beav. 124; Green v. Sevin, 13 Ch. D. 589, 599; Rousech v. Schindler, 7...