Sirk v. Ela

Morton, J. We must take the contract as we find it. There is nothing in it binding the plaintiff to take a conveyance of the property, nor anything which shows that, if he refused to take a conveyance, he was to forfeit the $500. The agreement expressly provides that, if the sale was not completed within one-month, the defendant was to return the money. In the absence of any qualifying words, we must construe that as meaning not completed for any cause by either party. The defendant ex- • pressly stipulates that he does not bind himself, nor “ attempt to bind any parties to the completion of said transaction.” The tender of the deed did not complete the sale. Nothing short of an actual conveyance of the title to the plaintiff would have done that. No doubt, if the plaintiff had bound himself to purchase, a tender of a sufficient deed would have entitled the defendant to specific performance. But in the absence of any valid agreement to that effect on the part of the plaintiff, or of any provision that he should forfeit the $500 if he did not complete the sale within a month, we do not see how his refusal to accept the deed entitled the defendant to keep the $500 which according to the terms of the agreement, the defendant personally bound himself to pay if the sale was not completed within one month. The evidence offered by the defendant to show what took place prior to, and at the time of, and subsequent to the making of the agreement was rightly rejected as it tended to vary and affect the written contract. If the amended answer could be regarded as sufficient under St. 1883, c. 223, § 14, the facts offered in evidence would not in view of the construction which we give to the agreement, have entitled the defendant “ in equity to be absolutely and unconditionally relieved against the plaintiff’s claim or cause of action.” Roberts v. White, 146 Mass. 256. Sherman v. Galbraith, 141 Mass. 440. Exceptions overruled.