Chatalian v. Di Fusco

Braley, J.

The agreement of sale, executed April 23, 1920, provides “that the deed shall pass within sixty days from this date and that all rents, the taxes of the year 1920 and insurance shall be apportioned at the date of the delivery of the deed.” The termination of the time within which the conveyance must be made or tendered was therefore fixed as June 23, 1920. The present action is at law and the time of performance is of the essence of the contract. Lowe v. Harwood, 139 Mass. 133 . Mansfield v. Wiles, 221 Mass. 75, 81 . The plaintiffs made the initial payment of $300 called for by the agreement, and the jury would have been warranted in finding that during the sixty days they were willing and financially able to perform their part of the contract, and endeavored on several occasions to obtain the conveyance. But the defendant before the time had expired failed to deliver or tender a deed, which failure under the circumstances shown by the record could be found to be a refusal of performance which has not been waived. Gormley v. Kyle, 137 Mass. 189 . The plaintiffs accordingly had a right to rescind, and can recover back their payment as money had and received to their use. Burk v. Schreiber, 183 Mass. 35 . Lowe v. Harwood, 139 Mass. 133 . The motion for a directed verdict was denied rightly and the exceptions must be overruled.

So ordered.