Sechrest v. Safiol

• Decision Date: 06 May 1981
• Citation: 419 N.E.2d 1384,383 Mass. 568
• Parties: Robert C. SECHREST v. George E. SAFIOL et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1384

419 N.E.2d 1384

383 Mass. 568

Robert C. SECHREST v. George E. SAFIOL et al. ¹

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Feb. 5, 1981.

Decided May 6, 1981.

Edward C. Donlon, Wellesley, for plaintiff.

Roy D. Toulan, Jr., Boston, for George E. Safiol.

Before HENNESSEY, C. J., and BRAUCHER, WILKINS, LIACOS and ABRAMS, JJ.

HENNESSEY, Chief Justice.

In this contract action, Robert C. Sechrest seeks to retain a $3,800 deposit made by George E. Safiol as the buyer under a purchase and sale agreement. A District Court judge ordered that the deposit be returned to Safiol. Sechrest requested a report to the Appellate Division of the District Courts, which dismissed the report, and he now appeals to this court pursuant to G.L. c. 231, § 109.

The District Court judge made the following findings of fact. On September 20, 1977, the parties signed a purchase and sale agreement under which Safiol agreed to buy from Sechrest a vacant lot in Wellesley, upon which Safiol planned to build a single-family dwelling. Safiol made a deposit of $3,800. ² At Safiol's request, the date for performance was extended three times, from October 21, 1977, to December 9, 1977; Safiol was told no further extensions would be allowed. On December 9, 1977, Safiol notified Sechrest that he was terminating the agreement in accordance with the provisions of paragraph thirty-one of the purchase and sale agreement. That paragraph provides that "(t)he BUYER'S obligations under this agreement are conditioned upon BUYER obtaining from the proper public authorities all permits and other approvals reasonably necessary, in the judgment of BUYER'S attorneys, for construction of a single family residence, similar to those in the neighborhood, on the land being purchased under this agreement. If the BUYER has not obtained all such permits and approvals, with appeal periods, if any, having expired, on or before October 14, 1977 (extended, by agreement, to December 9, 1977), then at the BUYER'S option all payments made hereunder by the BUYER shall be refunded forthwith and all other obligations of the parties hereto shall cease and this agreement shall be void and without recourse to the parties hereto."

Safiol never submitted any building plans or any application for a building permit to the town of Wellesley; nor did he seek any other town approval necessary for the construction of a single-family dwelling. He did have an architect prepare preliminary drawings, which he submitted for a price estimate to the builder he had chosen. In November, 1977, the builder informed Safiol that he would not be available for the construction. Safiol obtained estimates from other builders but did not select a builder and never completed the final plans.

The judge allowed Sechrest's request for ruling that "(w)here conditions relate to a Buyer's performance under a real estate Purchase & Sale Agreement, Buyer is obliged to use good faith and to take steps to attempt to fulfill such conditions and cannot seize upon his own inaction as the basis for terminating on the ground of non-fulfillment." The judge found that Safiol had acted in good faith, had made all reasonable efforts to obtain final plans, and had taken reasonable steps to comply with the terms of the agreement. He therefore ordered that the deposit be returned to Safiol. The Appellate Division considered the question whether reasonable effort was employed to be a question of fact and concluded that the judge's findings were not plainly wrong.

At issue here is the import of the contractual provision conditioning the buyer's performance on his "obtaining from the proper public authorities all (necessary) permits and other approvals." Sechrest contends that this provision requires the buyer to take steps reasonably calculated to obtain the necessary approval. Such steps should include some interaction with the public authorities, argues Sechrest, and as Safiol never even attempted to secure the necessary permits and approval, the judge erred in concluding that Safiol had taken reasonable steps to comply with the agreement.

Safiol urges us to abide by the language of the contractual provision, which does not expressly require the buyer to try to obtain any permit or approval. ³ We reject such a literal interpretation. The apparent purpose of the provision in the purchase and sale agreement was to give the buyer the power to terminate the agreement in the event he was unable to obtain the necessary approval from the town. The provision cannot be viewed as creating a mere option in the buyer to purchase without any requirement of affirmative action on his part. Necessarily implied in the provision is an obligation to use reasonable efforts to obtain town approval. See Stabile v. McCarthy, 336 Mass. 399, 402-403, 145 N.E.2d 821 (1957). ⁴ Stabile involved a purchase and sale provision conditioning the buyer's performance on his ability to secure the approval of the town planning board for his proposed subdivision. We there observed that "(i)t must have been contemplated that (the buyer) would prepare a plan...