Thacher v. Weston

83 N.E. 360, 197 Mass. 143, 1908 Mass. LEXIS 678

• Court: Massachusetts Supreme Judicial Court
• Decided: January 2, 1908
• Status: Published

Opinion

Hammond, J.

The demurrer was rightly sustained. The plaintiff had simply the option to purchase or not, as he saw fit, the real estate, upon the payment by him of $10,000. It is nowhere alleged in the declaration, either expressly or by fair implication, that at the time of the committal of the acts of which the plaintiff complains he had given notice that he elected to purchase. His contention that his acts with reference to the auction show such election, is untenable. To one reading between the lines such an attempt to sell indicates an intention to postpone a decision until after the auction rather than an election to purchase whatever may be the result.

We do not "mean to indicate that, even if before the auction he had given notice of his election to purchase, the defendant’s acts would not have been strictly within her legal rights. Certainly before such notice the duty owed by the defendant to the plaintiff was simply to hold herself ready to convey the property to the plaintiff when he paid the purchase price. The contract gave him no interest in the property. She remained the owner as before, and the only thing he had was the contract for an option. The principle upon which the plaintiff relies that a prospective vendor holds the estate for the vendee is not applicable, in such a state of things, to the extent claimed by the plaintiff.

The defendant agreed to sell to the plaintiff, upon the payment by him of a certain sum, at his option to be exercised within a certain time. Within the time the plaintiff elected to purchase, paid the money, and the defendant conveyed the property as she agreed. The defendant failed in no duly which she owed to the plaintiff. Among the authorities bearing upon the principles involved, see Bostwick v. Hess, 80 Ill. 138; Chappell v. McKnight, 108 Ill. 570; Provident Life & Trust Co. v. Mills, 91 Fed. Rep. 435; Frick's appeal, 101 Penn. St. 485; Edwards v. West, 7 Ch. D. 858; and also the eases cited in 21 Am. & Eng. Encyc. of Law, (2d ed.) 934.

Judgment for the defendant.