Vander Realty Co. v. Gabriel

• Citation: 334 Mass. 267,134 N.E.2d 901
• Parties: VANDER REALTY CO., Inc. v. Franklin M. GABRIEL.
• Decision Date: 04 June 1956
• Court: United States State Supreme Judicial Court of Massachusetts

Page 901

134 N.E.2d 901

334 Mass. 267

VANDER REALTY CO., Inc. v. Franklin M. GABRIEL.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued May 7, 1956.

Decided June 4, 1956.

Robert C. Capasso, Norwood, Joseph F. Lyons, Boston, for plaintiff.

H. J. Webb, Franklin, for defendant.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.

SPALDING, Justice.

In this action of contract the plaintiff seeks to recover a deposit made by it under an agreement to purchase certain real estate. The judge found for the defendant. From a decision of the Appellate Division dismissing a report, the plaintiff appealed.

The judge made detailed findings of facts which, the report states, 'incorporate all the evidence at the trial.' The facts pertinent to this appeal are these. On January 26, 1953, the parties entered into a written agreement for the sale by the defendant and the purchase by the plaintiff of eight lots of land in the town of Sharon. The purchase price was $8,000, of which $1,000 was paid by the plaintiff to the defendant upon the execution of the agreement. The agreement called for performance on or before June 15, 1953, but it contained a provision that 'Either party may have thirty days extension to cure any defect found in title.' The agreement also contained the following provisions: 'If seller is prevented from performing by defect [of title] not caused by him, this agreement shall terminate and the seller shall return the deposit.' 'If the buyer fails to tender the entire consideration and accept conveyance of all the lots prior to June 15, 1953, this agreement shall terminate and the seller may retain the sums paid as a deposit as liquidated damages. * * * The seller agrees to tar surface of roadway to town * * * [specifications].'

Neither the deed nor the consideration was tendered on or before June 15, 1953; nor was the agreement extended. 'The defendant did not tar the surface of the roadway, neither did the plaintiff call upon him to do so before the expiration of the agreement or in any manner state that it was going to void the agreement because that had not been done. As far as observing the terms of the agreement went, both parties let the matter drop. Nothing further was done by either until after the plaintiff had the title examined in 1954. Why it caused the examination to be made at that late date did not appear. Then upon report of the examiner that the title was not marketable, which was so, the plaintiff demanded return of its deposit.'

The judge concluded that 'Since no defect [in the title] was called to the attention of the seller within the term of the agreement, he had no opportunity to exercise the right given him to cure it.' He ruled that the plaintiff having failed 'to tender the entire consideration and accept conveyance of all the lots prior to June 15, 1953,' the agreement was terminated and the defendant was entitled under the agreement to retain the deposit as liquidated damages.

The plaintiff presented eleven requests for rulings and all but four were allowed. Of those not allowed the only one pertinent to the questions here argued is number 4 which reads: 'A renunciation of the agreement, by declarations or inconsistent conduct, before the time for performance, may give cause for treating it as rescinded, and excuse the other party from making ready for performance on his part, or relieve him of necessity of offering performance in order to enforce his rights.' With respect to this request the judge stated, 'No action taken as not applicable to the facts found * * *.' This was in effect a denial of the request. Mitchell v. Silverstein, 323 Mass. 239, 240-241, 81 N.E.2d 364. The request, which was taken almost word for word from the leading case of Daniels v. Newton, 114 Mass. 530, 533, is a correct statement of the law and should have been given unless it was not applicable to the facts found.

In support of the request the plaintiff argues in substance that it was not in default because on June 15, 1953, when the agreement was to be performed, the defendant was unable to perform for the reason that he had not tarred the roadway which under the agreement he was obligated to do; that the promises in the...