Marcus v. Clark

Boring, J. This is an action on a written contract for the purchase and sale of land, to recover damages suffered by the [411] purchaser from the sellers’ failure to fulfil their part of the agreement. The contract called for a conveyance by the defendants free from incumbrances upon payment of $25,000 within sixty days from the date thereof. Five thousand dollars of the purchase money was paid by the assignment of a note immediately after the contract was signed. The contract was dated August 28, 1902, and was assigned by the plaintiffs to one Jennings on the day it was executed. The plaintiffs proved that on July 18, 1902, (a little more than a month before the contract here sued on was executed,) the defendants had entered into a covenant with the city of Boston by which they imposed restrictions on the land in question, The judge who heard the case without a jury found as a fact that the plaintiffs had full knowledge of the restrictions when the contract was made, but that the fact “that the plaintiffs and their assignee, Jennings, had full knowledge of the restrictions at the time of the making of the agreement, and upon which the action is based, is not material to the construction of said agreement.” The sixty days expired on October 27, 1902. The plaintiffs have argued that inasmuch as the defendants by their prior covenant of July 18 had put it out of their power to perform the obligation which they assumed in their contract of August 28, it was not necessary for the plaintiffs to aver and prove that they were ready and willing to perform the agreement. But the judge has found as a fact that during the time when the plaintiffs were entitled to a conveyance on paying the balance of the purchase money, the plaintiffs were satisfied to take a conveyance subject to these restrictions as a full performance of the defendants’ obligation to make a conveyance under the contract,' and never expected to receive anything else; and that the objection by reason of the restrictions was an afterthought which was first put forward after the time for performance had expired. This is a finding that the objection based on these restrictions was waived, and that both parties to the contract were proceeding on the footing that it had been waived. The existence of the restrictions under this finding did not put the defendants in the wrong, and the plaintiffs, to maintain this action, had to prove that the defendants had wrongfully refused [412] to convey subject to the restrictions. The sixth ruling requested was rightly refused. The next exception argued by the plaintiffs is one to the exclusion of evidence. The defendants introduced evidence tending to show that on the day after the time limited in the agreement had expired, Jennings came to the defendants’ attorney and stated that “ he had difficulty in getting the money,” and asked for an extension of time. The plaintiffs offered to show in rebuttal by Jennings that the real purpose for which he asked for an extension was that he “ desired further time to see if he could handle this property with the restrictions on, which he had recently found to exist,” which purpose was not disclosed to the defendants or their attorney. It is immaterial what undisclosed and secret purpose Jennings may have had so long as he stated to the defendants’ attorney that his reason for an extension was difficulty in raising money and this was the only reason stated by him. This evidence was rightly excluded. The next exception argued by the plaintiffs is to the ruling of the judge admitting evidence of “talks between the witness and the plaintiffs after the assignment was executed.” It appeared from the writ that this action was brought in the names of Alfred A. and Simeon Marcus “ for the use and benefit ” of Jennings the assignee. The talks admitted were between one Schon, who as a real estate broker originally ‘brought the land to the attention of the assignors, the nominal plaintiffs, and who was sent by them to one Page who acted as broker for the defendants in the sale covered by the contract sued on. Schon was allowed to testify that “ about the end of September or the beginning of October,” Marcus asked him to. get Mr. Page to give an extension because “ I [Marcus] haven’t got the money ” ; that witness saw Page and the offer was refused; that thereupon Marcus instructed the witness to offer Mr. Page $1,000 for an extension of time, to be forfeited as liquidated damages if the purchaser failed to perform his agreement; that this was refused, and that subsequently Marcus said to him: “ I guess I will drop it; Mr. Page won’t give an extension, and they cannot give any title and there are restrictions ”; that witness replied, “I told you that there were park restrictions all the time, especially before you went down to see Mr. Page ”; and [413] that “ this conversation took place probably the middle of October.” If the plaintiffs’ assignee did not notify the defendants of the assignment, he was bound by the action of his assignors who were the original parties to the contract and the only parties known to the defendants. Any request for an extension made by the original parties to the contract under such circumstances is admissible against the assignee. The presiding judge may have admitted the evidence on this ground. In addition to this Jennings had previously testified that “ he knew that the Marcuses were having difficulty in raising the $20,000 required to complete the contract; that is why he went to Mr. Wyman [the defendants’ attorney] to get an extension,” and it appeared later from Jennings’s testimony in rebuttal that the plaintiffs were to raise the balance of the purchase money for him and were to have all realized from a subsequent sale of the land over the purchase money paid and $8,000 owed to Jennings by the plaintiffs. It further appeared that Jennings left-the whole matter of raising the money to the plaintiffs; that Jennings did not take any action in the matter until the last day within which the purchase money could be paid, and that all he did on that day was to make an appointment to meet the defendants’ attorney on the next day. This request for an extension made by a person interested in the contract when the request was made is admissible although the action is now brought for the exclusive use and benefit of the other party to the agreement. The plaintiffs were not injured by the admission of this evidence. The plaintiffs have further argued that on the facts stated the defendants are not entitled to retain the note which was assigned to them as part payment of the purchase money, and that in any event the plaintiffs are entitled to recover the value of it on the principle of Burk v. Schreiber, 183 Mass. 35. But the case at bar is not a case like Burk v. Schreiber, where an action was brought to recover back a part payment on rescission of the contract under which it was made. Ho such claim was made in the court below. The pleadings go on the basis of affirming the contract and claiming damages on the ground that it was broken. The rulings asked for by the plaintiffs went on that basis. Exceptions overruled.