Brown v. Davis

138 Mass. 458, 1885 Mass. LEXIS 222

Opinion

C. Allen, J.

The delivery of the deed and the payment of the money were to be concurrent acts. It is true that the defendant did not do what was necessary to enable himself to give a good title within the four months. But he did nothing to disable himself from performance. He merely omitted to prepare himself. He remained inactive. This did not relieve the plaintiff from the duty of making an offer to perform on his part. There was no time when the plaintiff had prepared himself to perform presently his part of the contract. Neither party took sufficient steps to hold the other. It is no doubt true, that an actual tender of the money by the plaintiff was not necessary; but he must show that he was ready, willing, and able to do his part, and that the defendant had notice thereof. Nothing short of this would put the defendant in legal default. The maxim, that the law does not compel one to do vain or useless things, does not apply to a case like this. Here both parties remained inactive, in the eye of the law. What the plaintiff did by way of arranging for the money was merely preliminary, and was quite insufficient to give him a right of action. Hapgood v. Shaw, 105 Mass. 276. Smith v. Boston & Maine Railroad, 6 Allen, 262, 273. Howland v. Leach, 11 Pick. 151. There was no waiver by the defendant, as in Gormley v. Kyle, 137 Mass. 189. Exceptions overruled.