Sirk v. Ela
| Decision Date | 03 April 1895 |
| Citation | 163 Mass. 394,40 N.E. 183 |
| Parties | SIRK v. ELA. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Plaintiff, who was negotiating for the purchase of certain property, paid defendant $500, and received from him the following agreement:
Balch & Rackemann, for plaintiff.
Augustine J. Daly, for defendant.
We must take the contract as we find it. There is nothing in it binding the plaintiff to take a conveyance of the property nor anything which shows that if he refused to take a conveyance he was to forfeit the $500. The agreement expressly provides that if the sale was not completed within one month the defendant was to return the money. In the absence of any qualifying words, we must construe that as meaning "not completed, for any cause, by either party." The defendant expressly stipulates that he does not bind himself, nor "attempt to bind any parties, to the completion of said transaction." The tender of the deed did not complete the sale. Nothing short of an actual conveyance of the title to the plaintiff would have done that. No doubt, if the plaintiff had bound himself to purchase, a tender of a sufficient deed would have entitled the defendant to specific performance. But in the absence of any valid agreement to that effect on the part of the plaintiff, or of any provision that he should forfeit the $500 if he did not complete the sale within a month, we do not see how his refusal to accept the deed entitled the defendant to keep the $500, which, according to the terms of the agreement, the defendant personally bound himself to pay if the sale was not completed within one month.
The evidence offered by the defendant to show what took place prior to, and at the time of, and subsequent to the making of the agreement was rightly rejected, as it tended to vary and affect the written contract. If the amended answer could be regarded as sufficient under section 14, c. 223, Acts 1883 the facts offered in evidence would not, in view of the construction...
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...of an option acquire any interest in the stock until it elected to purchase and notified the executor of its election. Sirk v. Ela, 163 Mass. 394, 40 N.E. 183;Thacher v. Weston, 197 Mass. 143, 83 N.E. 360;Loring v. Lamson & Hubbard Corp., 249 Mass. 272, 143 N.E. 916. The executors held the ......
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New England Trust Co. v. Spaulding
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...or, to put it otherwise, has performed the condition contained in the offer. Barnes v. Rea, 219 Pa. 279, 68 A. 836, 838; Sirk v. Ela, 163 Mass. 394, 40 N. E. 183. Then, and then only, can the contract be specifically enforced. Hayes v. O'Brien, 149 Ill. 403, 37 N. E. 73-75, 23 L. R. A. 555;......