Murray v. Mayo

31 N.E. 1063, 157 Mass. 248, 1892 Mass. LEXIS 50

Opinion

Knowlton, J.

1. There was evidence that the defendant ratified the making of the contract of sale in his name. It appeared, among other things, that he was informed of it soon afterwards, and received, without objection, the payment of two hundred and fifty dollars, which .was made to his agent on account of the property at the time of the sale. Again, on September 6, 1888, he received a second instalment of two hundred and fifty dollars of the purchase money, and gave his receipt acknowledging that it was in part payment for this house. On many other occasions he recognized the contract, and the judge was right in submitting to the jury the question of ratification, under the instructions given.

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2. The contract was dated “ Springfield, Mass.,” and the real estate was described as the “ house and lot 343 Worthington Street.” It appeared that the house 343 Worthington Street, Springfield, was well known, and that the lot “ was well defined by monuments consisting of fences.” Any description in a deed or contract of sale of real estate from which the property can be exactly located is sufficient, although paroi evidence is necessary to apply the description to the land and fix the boundaries. This description was sufficient. Hurley v. Brown, 98 Mass. 545. Mead v. Parker, 115 Mass. 413.

3. The only remaining exception is to the refusal of the presiding judge to rule that there was “ no evidence in the case to justify a finding that the fourth instalment, falling due February 7, 1889, was either paid or tendered to defendant, and that as to this instalment she was in default, so that her action cannot be maintained.” It was not necessary for the plaintiff to prove that the fourth instalment was either paid or tendered to the defendant, if he had, in breach of his contract, refused to receive the third instalment, and if she showed him her willingness to perform the contract, and he declined to accept her performance of it, and declined to perform his part of it. Linton v. Allen, 154 Mass. 432. The defendant testified that he fre quently demanded payment of the plaintiff, and that he always insisted upon her paying interest and taxes, in addition to the instalments mentioned in the contract. The plaintiff testified that she repeatedly offered to pay him the third instalment, and “offered to pay him any time that he would accept it,” but he declined unless she would pay the interest and taxes. Although the plaintiff, as she says, understood that each of the instalments was to become due three months later than a true construction of the contract shows, she appears to have yielded to the defendant in this particular, and, on his giving her a few days time, she paid the second instalment soon after it became due, and on his giving her a short extension upon the third instalment she was prepared to pay that. The jury were well warranted in finding on the evidence that the defendant refused to receive the third instalment solely because she refused to pay the interest and taxes, and that she indicated her willingness to perform her contract if the defendant would accept performance of it; and that he refused. The bill of exceptions does not purport to give all the evidence on this part of the case, but there was testimony that the plaintiff was forcibly ejected from the premises before the expiration of the year. The ruling requested was that the action could not be maintained, because the plaintiff was in default in regard to the payment of the fourth instalment. The bill of exceptions does not show that the plaintiff was in default in failing to pay or formally to tender that instalment.

The plaintiff might prove a breach of contract on the part of the defendant without showing that he conveyed the property to anybody else, or that she had formally demanded a conveyance to herself. In the absence of a full report of the evidence touching the defendant’s alleged breach of contract, it is to be presumed that the case was properly submitted to the jury, and that their verdict was warranted. At all events, it does not appear that the judge should have given the instruction requested.

Exceptions overruled.

“ If you find, upon the evidence, that after the making of the contract by the agent it was brought to the knowledge of the defendant, and he accepted the act of his agent, and adopted that act and made it his own, then it is as though the defendant, on the 7th day of May, 1888, had himself signed the memorandum or agreement, and delivered it to the plaintiff. And you may proceed as though on that day the minds of the parties met, and the agreement was made which was incorporated in this instrument and delivered by the defendant to the plaintiff.”