Phillips v. Soule

75 Mass. 233

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1857
• Status: Published

Opinion

Bigelow, J.

On the facts proved in this case we think a waiver of the strict- performance of the original terms of the contract may fairly be inferred, and that the plaintiff is entitled to a conveyance of the land on fulfilling the stipulations on his part to be performed. The conveyance to be made by the intestate to the plaintiff was not of the nature of a condition precedent. The stipulations of the parties respectively were mutual and dependent, and the deed from Herrick to the plaintiff and the mortgage back to Herrick were to be simultaneous acts, Kane v. Hood, 13 Pick. 281.

After the long delay of the plaintiff in bringing his suit for the specific performance of the contract, we think he cannot equitably claim that the administrator shall now receive the note and mortgage for the sum due the estate under the contract, but that under the circumstances of the case he is bound to pay it to the administrator in money, on receiving a proper conveyance of the premises. Decree accordingly.