Smith v. Mcmahon

• Decision Date: 31 December 1907
• Citation: 197 Mass. 16,83 N.E. 9
• Parties: SMITH v. McMAHON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

197 Mass. 16

83 N.E. 9

SMITH v. McMAHON.

Supreme Judicial Court of Massachusetts, Bristol.

December 31, 1907

COUNSEL

Mayhew R. Hitch and Merton C. Fisher, for plaintiff.

John W Cummings and Charles R. Cummings, for defendant.

OPINION

MORTON J.

The claimant, McMahon, whom we shall speak of as the defendant entered into an agreement with the plaintiff to buy and the plaintiff to sell certain real estate belonging to the plaintiff situated in Fall River. The sale was made through a broker and a memorandum of the agreement was reduced to writing and signed by him. The memorandum recited that the broker had received from McMahon $500 on account of and in part payment of the real estate sold and that the balance was to be paid on delivery of the deed. Before the time came for the delivery of the deed the defendant refused to complete the purchase and take a deed and this action was thereupon brought by the plaintiff against the broker to recover of him the five hundred dollars which had been paid to him as aforeasid by the defendant. The defendant was admitted as claimant; thenceforward the action was prosecuted between him and the plaintiff. There was a verdict for the plaintiff and the case is here on exceptions by the defendant to certain rulings and refusals to rule by the presiding judge.

At the time the agreement was entered into the property was subject to certain incumbrances by way of lease and mortgage, and the defendant contended and asked the court to rule that the plaintiff was not entitled to recover because not able to perform his agreement by reason of said incumbrances. The presiding judge refused so to rule, and instructed the jury in substance that in order to entitle him to recover the plaintiff was bound to show that a tender of a deed had been made, unless he was excused from making such tender by the conduct of the defendant, and that the fact that there were incumbrances on the property did not excuse the defendant from refusing to perform since it was not to be inferred that the plaintiff could not have extinguished them and delivered a good title.

The instructions assumed, and correctly, that the plaintiff was bound under the agreement to convy a good title free from all incumbrances. Swan v. Drury, 22 Pick. 485. And if the defendant had waited till the time came for the delivery of the deed, and the property was then subject to mortgages and leases, he would have been justified in refusing to accept the deed, and would have been entitled to recover back the money which he had paid to the broker. But he did not wait, and did not, so far as appears, put his refusal to take a deed and complete the purchase on the ground that there were incumbrances upon the property, but on the ground that an abutting owner would object in the...