Cole v. Killam

Contract, Performance and breach. Conditions, Concurrent. Equity Jurisdiction, Specific performance. In a suit in equity to enforce the specific performance of a contract by which the defendant agreed to sell certain land to the plaintiff for the sum of $50 per acre at any time before the expiration of a certain lease, the conditions of the contract being concurrent the plaintiff need not prove a tender of the purchase money. It is sufficient for him t'o show that he notified the defendant that he would take the land and pay the price, and was ready and able and offered to do so, and that the defendant refused to convey the land and did not intend to keep his agreement. A request by the plaintiff that the defendant should have a surrey of the land made, this being necessary to determine how much should be paid, does not excuse the defendant’s refusal to convey, especially if he did not base his refusal on that ground.

Bill in equity, filed July 3, 1902, to enforce the specific performance of a contract to convey to the plaintiff a certain parcel of land in Boxford. The bill alleged, that on April 10, 1897, the plaintiff leased from the defendant a certain parcel of land in Boxford, which was known as “ The Plain,” for the term of five years from the date of the lease, that the plaintiff occupied the premises during the term of the lease and performed all things which by the terms of the lease he was bound to perform, and before the expiration of the lease notified the defendant that he would purchase the land described in the lease in accordance with the privilege given to him therein, that the exact amount of land in the parcel was not known either to the plaintiff or the defendant, but before the expiration of the lease the plaintiff offered to the defendant the purchase price of the land at the rate of $50 per acre according to the best estimation of the quantity of land which he could make and further offered to make good to the defendant any deficiency in the purchase price at the rate aforesaid if upon a survey of the premises it appeared that he had not paid sufficient money, that the defendant refused to accept the tender and refused to convey the premises to the plaintiff or to give him a deed thereof, and that upon the expiration of the lease the defendant re-entered the premises and at the time of the filing of the bill still held possession of them, praying that the defendant might be ordered specifically to perform the agreement contained in the lease and that upon payment by the plaintiff to him of the amount due at the rate of 150 per acre the defendant might be ordered to execute and deliver to the plaintiff a good and sufficient deed of the premises. The defendant demurred to the bill. In the Superior Court Holmes, J. overruled the demurrer, and the defendant appealed. Thereupon the case proceeded to trial. It appeared, that the defendant leased to the plaintiff the real estate in Boxford on April 10, 1897, for the term of five years as alleged in the bill, and that in the lease was contained the following agreement: “ And I, the said Henry M. Killam, agree to sell all of said land except the following described parcels to the said Cole for the sum of fifty dollars per acre at any time prior to the expiration of this lease.”