Ward v. Cobb
| Decision Date | 28 February 1889 |
| Parties | WARD v. COBB. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
S.J. Thomas, for plaintiff.
A. Russ and D.A. Dorr, for defendant.
The question at issue in this case is whether the agreement entered into between the defendant and Francis L. Brown was a sale of the defendant's real estate, within the meaning of the contract declared on. The defendant's counsel does not contend that the words in the contract, "shall effect a sale," exclude from consideration former efforts of the plaintiff to sell the property, if those efforts finally resulted in a sale. Before the written contract between the plaintiff and the defendant was made the plaintiff had agreed with Brown on the terms of a sale and had drawn up and submitted to him a written contract, which the defendant had taken away to show to her attorney. If what the plaintiff had before done brought about a sale, he is entitled to the commission for which he sues. The writing signed by the defendant and Brown was a contract of sale. It was not in the form required to pass the legal title to the real estate, but it gave him an equitable right, and it bound her to make a conveyance, and him to take it, and pay for it. Specific performance would have been decreed by a court of equity upon application by either of the parties. It was made subject to the contingency that the Massachusetts Hospital Life Insurance Company should consent to release the defendant from liability upon the mortgage note, and either party seeking to enforce it would have been obliged to show such consent; but there is nothing to indicate that the company was unwilling to release her, or that her conduct in relation to the contract was affected by this provision in it. Upon Brown's failure to make payment according to the terms of the contract, and upon the continuance of his delinquency for two and one-half weeks, the defendant's attorney told him "the matter was at an end," and the defendant kept the $200 which had been paid, and voluntarily gave up her right to sue for the balance of the purchase money, or to obtain a decree for specific performance.
The defendant saw fit to make the sale upon 15 days' credit with no security for payment of the price, except the $200 which was given her when the contract was signed. The terms of sale were apparently satisfactory to her; at least, they were such...
To continue reading
Request your trial