Lowe v. Harwood

Holmes, J. The defendant’s conveyance of his land and chattels to a third person, when the plaintiff was in no default, was sufficient to constitute an actionable breach of contract, although the plaintiff had made no tender. Newcomb v. Brackett, 16 Mass. 161. Buttrick v. Holden, 8 Cush. 233. See also Farrington v. Hodgdon, 119 Mass. 453, 458. It is suggested that it does not appear that the plaintiff was able to pay the money which he was to pay. But he was personally bound for it, and the degree of his ability at any moment before he was called on to pay was no concern of the defendant’s. The way for the defendant to test that was to tender performance on his side conditionally upon the plaintiff’s performing his part of the agreement. See Brown v. Davis, 138 Mass. 458. But apart from the conveyance, and it would seem before it was made, although the date is not fixed, the defendant broke the contract by repudiating it. The agreement was signed on November 8, 1883. The plaintiff at once and continuously tried to have it performed. But on November 12, the defendant wrote to the plaintiff that his wife would not sign a deed, and that “ taking it all around will have to give up the trade.” On November 24, after other correspondence, and in answer to a notice from the plaintiff that he should hold the defendant to the agreement, and calling on him to carry it out, the defendant wrote that the bargain was made dependent on his wife’s consent. “ She refused and I notified you, and that wound up the business as I understood it.” Bead in the light of what had 136 gone before, this was an absolute repudiation of the contract, which not only excused the plaintiff from making any tender and authorized him to rescind if he chose, (Ballou v. Billings, 136 Mass. 307, and Gormley v. Kyle, 137 Mass. 189,) but amounted to a breach of the contract. The contract was for immediate exchange, allowing a reasonable time for necessary preparations. In the absence of special circumstances, which do not appear, sufficient time had been allowed, even if any consideration of that sort could not be and was not waived by the defendant. The case is not affected by Daniels v. Newton, 114 Mass. 530, but falls within principles that have been often recognized. Howland v. Leach, 11 Pick. 151. Tinney v. Ashley, 15 Pick. 546, 552. Hapgood v. Shaw, 105 Mass. 276, 279. Carpenter v. Holcomb, 105 Mass. 280. West v. Platt, 127 Mass. 367, 370. Laird v. Pim, 7 M. & W. 474. ¡Exceptions sustained.