Powers v. Mayo

Hoar, J. The plaintiff seeks by his bill to enforce the specific performance of a contract in writing for the conveyance of real estate, with buildings upon it which the defendant agreed to finish according to the specifications of the contract. He avers that the defendant finished the buildings accordingly, except so far as it was orally agreed that certain work required by the contract might be omitted, with a corresponding deduction from the price to be paid; that he has received possession of the estate, and has performed or has been ready and now offers to perform all that the contract called for on his part. The defendant admits the making of the contract, that the plaintiff has in part complied with the terms of it, and that possession of the estate has been given to the plaintiff in conformity with it. He alleges his own readiness to convey the estate to the plaintiff, provided he will do and perform what in equity he ought to do and perform in order to the further and complete execution of the contract, especially in making certain payments of greater amount than in his bill he admits to be due, and in paying a part of the consideration in money instead of by a transfer of stock. The case was sent to a master to examine and report upon the facts in dispute; and the only exception taken by either party to his report is as to his finding of the rights of the parties in relation to the stock which the contract requires the plaintiff to transfer as part of the consideration, and which the defendant objects to receive. Upon this state of the pleadings, there can be no doubt that the plaintiff is entitled to a decree for the specific performance which he seeks. The contract is admitted, and the defendant [186] consents to perform it. The only question remaining is upon the terms and conditions of performance which equity will require. In the first place, in regard to the paroi variations from the contract, which the plaintiff has alleged, the defendant does not, in his answer, object to the enforcement of the contract on account of them, but merely denies the accuracy of the plaintiff’s statement of the amount. The master’s report has settled the amount in controversy. The plaintiff alleged that he agreed to give up a part of the work to be done in finishing the house, and that he was to have a corresponding deduction from the purchase money. To this the defendant agrees, but claims that the amount of the deduction is less than the plaintiff’s computation makes it. This could not prevent the enforcement of the written contract, because it is in effect an agreement by the defendant to receive the plaintiff’s waiver of a part of his rights under the written agreement in lieu of a payment. It is a satisfaction pro tanto of a part of the plaintiff’s obligation. The next point is the claim of the defendant that certain extra work, not provided in the written contract, but done by him at the plaintiff’s request, should be paid for before he should be compelled to convey the estate. It is very questionable whether this could be required as a condition of the specific performance, being a separate and independent agreement; but this becomes unimportant, as the plaintiff consents that it may be allowed, and the master has reported the amount due. The delay of the plaintiff in executing his part of the agreement, which has been insisted on in the argument, cannot avail as a defence to the bill, for two reasons : first, it is not set up as a defence in the answer; and secondly, it appears by the report that the agreement has been partly performed, and the delay in completing it has been in part owing to the inability of the parties to ascertain and agree upon the items of account, but chiefly to the refusal of the defendant to accept a transfer of stock which was specified in the contract as a part of the consideration for the conveyance. The only other question is that which relates to the stock [187] By the contract the defendant was to receive in payment of eight hundred dollars of the purchase money, eight shares of the stock of the American Machine Works, which the plaintiff avers that he has always been ready and has offered to transfer; which is not denied in the answer. This stock is now nearly worthless, and the defendant claims that he should be paid in money. We think the facts found by the master do not support this claim. The ground taken in the answer is that the defendant agreed to take the stock, trusting wholly to the representation of the plaintiff that it was as good as cash. The proof shows that it was then really worth, in intrinsic value, no more than it is now; that its value depended wholly upon the collection of some doubtful debts; and that the plaintiff made the representation alleged. But it does not appear, and it is not set up in the answer, that the plaintiff did not believe his representations to be true, or had any fraudulent intent or purpose. On the contrary it appears that he referred the defendant to the secretary of the company for information as to its condition; and one witness says, offered a week’s time for that purpose. The defendant then preferred to have cash instead of the stock, but the plaintiff was not willing to trade unless he would take the stock. The last previous sale of the stock had been nearly at par. The defendant made no inquiries, signed the contract, and proceeded for months in its execution, adding new stipulations, receiving payments, and making no offer to rescind the entire contract; indeed, putting it out of his power to restore the plaintiff to his original condition. We think it appears that the stock would have sold for something in the open market at the time the contract was made. Under such circumstances, in the absence of fraud, the reliance by the defendant upon the plaintiff’s opinion of the value of the property which he agreed to take is no sufficient reason for rescinding or modifying the terms of the bargain, although his reliance may have been misplaced. The plaintiff is, therefore, entitled to a decree in conformity with the master’s report.