Thaxter v. Sprague
| Decision Date | 22 June 1893 |
| Citation | 34 N.E. 541,159 Mass. 397 |
| Parties | THAXTER v. SPRAGUE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
W.M. Stockbridge, for appellant.
Melvin O. Adams and Henry V. Cunningham, for appellee.
This is a bill for specific performance. The plaintiff is not entitled to the relief which she seeks as a matter of strict right. The application is addressed to the discretion of the court, which, in considering it, will take into account all the circumstances. Lee v. Kirby, 104 Mass. 420; Curran v. Water-Power Co., 116 Mass. 90; Wonson v. Fenno, 129 Mass. 405; Railroad Corp. v. Babcock 6 Metc. (Mass.) 352. The contract on which the plaintiff relies was dated April 26, 1887, and provided for the payment of $50 down by her, and $25 per month till the whole amount of $1,700 was paid, with interest and taxes. It also stipulated that $200, exclusive of interest, was to be paid by July 10th, when the defendant was to give the plaintiff a deed, and take back a mortgage for the balance. There was also the further stipulation that if the plaintiff did not call for a deed, or care to continue the purchase, the defendant was to release her from future payments, and accept the $200 for the rent of the premises for the season, which was from April to October. The plaintiff paid the $50 down but, being afraid that she would not be able to pay the $200 by July 10th, it was agreed that the defendant would be satisfied with the $25 per month till the $200 was paid. In October the plaintiff had paid the $200, and, as she testified, she then requested the defendant to make a deed to her father-in-law, one Joshua Thaxter, agreeing that the respondent should have a mortgage back to secure the balance of the purchase money. She made no other request for a deed than this, and it did not appear that her father-in-law was privy to this arrangement, or that any mortgage was ever prepared. The plaintiff further testified that the defendant agreed to make the deed in the course of the following week, but did not. It appeared that after October the plaintiff did not make any payment, and that she did not pay the taxes, and the premises were advertised for sale by the collector. She wrote to the defendant then, asking why she had not sent the deed; the first time about a month after the interview in October, and the other about two weeks later, neither of which letters was there any evidence that the defendant received. After writing the second letter, she did nothing more. The plaintiff testified that she expended $200 in permanent alterations and improvements on the premises, but it appeared that she used the premises for boarders, and that the alterations and improvements were made for their accommodation. There was evidence tending to show that the defendant caused notice to be given to the plaintiff in February, 1888, that, unless she paid what was due, she should take possession on the 1st of March. A statement of the amount due was subsequently given to the plaintiff, but she failed to pay it, and the defendant took possession of the...
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