Sleeper v. Nicholson

• Decision Date: 25 February 1909
• Citation: 201 Mass. 110,87 N.E. 473
• Parties: SLEEPER v. NICHOLSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

201 Mass. 110

87 N.E. 473

SLEEPER v. NICHOLSON.

Supreme Judicial Court of Massachusetts, Suffolk.

February 25, 1909

COUNSEL

George V. Phipps, for plaintiff.

Stephen H. Tyng, for defendant.

OPINION

MORTON J.

This is an action to recover damages for the breach of a written agreement for the exchange of real estate and personal property of the defendant in Sanbornton, in New Hampshire for real estate and personal property of the plaintiff in Winthrop in this state. There was a verdict for the plaintiff and the case is here on exceptions by the defendant to the refusal of the presiding judge to give certain rulings which were requested and to the admission of certain evidence.

The agreement provided amongst other things that the premises belonging to the plaintiff were to be conveyed 'free from all incumbrances excepting a mortgage of seven thousand five hundred dollars ($7,500),' and that all the personal property on the premises belonging to the defendant was to be included in the conveyance to be made by him 'except the piano, and certain pieces to be agreed upon.' The agreement also contained the following provisions namely 'Rents and taxes assessed for the year 190--, shall be apportioned as of the day of the delivery of the deeds,' and 'This agreement shall be performed by the parties concurrently on Tuesday, July 25, 1905, at two o'clock p m. at the office of B. B. Merrill, 415 Old South Building. Possession to be given in each case on August 1, 1905.' The agreement recites that it was 'made this 19th day of July, A. D. 1905.' There was evidence tending to show that the plaintiff was present at the time and place named for performance with a warranty deed ready for delivery running from himself to the defendant of the real estate in Winthrop free from all incumbrances except the mortgage of $7,500, and including all the personal property not excepted by the agreement, but that the defendant was not present and thereafter gave no reason for his absence. It appeared that taxes for the year 1905 to the amount of $208.25 were assessed upon the plaintiff's real estate and were not paid by the plaintiff till May 18, 1906. It also appeared, if material, that a bill for these taxes 'was not rendered to the plaintiff until a month or two after July 25th, and that such bills were not ordinarily made and sent earlier than August or September in the year of assessment.' The defendant asked the court to rule that by reason of the incumbrance thus existing the plaintiff was not entitled to recover. The court refused so to rule and the defendant excepted. There was evidence tending to show that the plaintiff tendered to the broker at the time and place of performance the amount necessary to pay the taxes. Whether the tender thus made to the broker was sufficient to entitle the plaintiff to performance we need not consider. The plaintiff was ready and willing to perform and the neglect of the defendant to appear at the time and place appointed and his subsequent failure to offer any satisfactory explanation of his absence were equivalent to an absolute and unqualified refusal on his part to perform the agreement and constituted a waiver of any objection which he might have made that the premises were not free from incumbrances by reason of the lien to which they were subject for unpaid taxes. Howland v. Leach, 11 Pick. 151; Tinney v. Ashley, 15 Pick. 546, 552, 26 Am. Dec. 620; Carpenter v. Holcomb, 105 Mass. 280; Curtis v. Aspinwall, 114 Mass. 187, 19 Am. Rep. 332; Wells v. Day, 124 Mass. 38, 43; ...