Currier v. Howard

This case was decided in June 1860. Bigelow, J. This suit having been commenced while the St. of 1853, c. 371, § 1, was in force, and before the enactment of St. 1855, c. 194, was properly brought in the form of an action at law, praying for relief in equity, and may well be maintained to enforce the specific performance of a contract. Darling v. Roarty, 5 Gray, 71. The defendant was bound by a written contract to make conveyance of the premises by a “ division deed.” Such a contract might be assigned for a sufficient consideration. Ensign v Kellogg, 4 Pick. 1. And no assignment in writing is necessary to its validity. An obligation of record or under seal may be assigned by a writing unsealed or by a mere verbal agreement. Dunn v. Snell, 15 Mass. 485. Dawson v. Coles, 16 Johns. 51. Ford v. Stuart, 19 Johns. 342. In the present case there was ample proof of the assignment, not only by evidence of a verbal agreement, but also by delivery to the plaintiff of the written contract, and by the deed from John H. Currier to the plaintiff of one undivided half of what remained of the two lots of land which were to be divided. The assignee of the written contract is entitled to maintain this action for its specific performance. Ensign v. Kellogg, ubi supra. Batten on Spec. Perf. 358. The assignment being absolute and unconditional, and there being no remaining right or liability in the assignor which can be affected by the decree, it was not necessary to make him a party to the suit. Montague v. Lobdell, 11 Cush. 115. The defendant, being now the sole owner in fee of the interest of Eli B. Howard, and being capable of transferring the legal [514] title, is bound to perform the contract to which she was a party, by making a deed dividing the estate according to its terms, and is also liable for the damages caused to the plaintiff by her unlawful refusal to perform the contract. Decree accordingly.