Cave v. Osborne

Sheldon, J. The substantial effect of the instructions given to the jury was that the plaintiff would be entitled to recover if he showed that he had made such an agreement as he testified that he made with the defendant for the purchase of the land in [485] question, that he himself had complied with the terms of the agreement so far as the parties had gone, and had offered to pay the full agreed price either wholly in cash or partly in cash and partly by a mortgage upon the property, and that the defendant refused to comply with the agreement; but that the plaintiff could not have a verdict unless he on his part did comply with the terms of the agreement by paying or tendering the agreed price, if, that is, the failure of the transaction came by reason of his own neglect and not from the fault of the defendant. The oral agreement made between these parties was not void from the beginning; it was simply unenforceable by action if the objection that it was not in writing was taken against its enforcement. DeMontague v. Bacharach, 181 Mass. 256. If the defendant did repudiate the agreement for this reason, the plaintiff could recover back whatever payments he had made under it to the defendant. DeMontague v. Bacharach, 187 Mass. 128. Cromwell v. Norton, ante, 291. Such part payments would not take the case out of the statute of frauds. Thompson v. Gould, 20 Pick. 134. So, if the defendant without any sufficient excuse refused to make the conveyance and thus himself violated the agreement in an essential particular, the plaintiff could elect to treat the agreement as abandoned, and could hold the defendant to repay to him any partial payments already made therefor, as if they had not been made under a special contract. Brown v. Woodbury, 183 Mass. 279, 282, and cases there cited. But whether the plaintiff’s cause of action rested on the one or the other ground, it was equally necessary for him to show that he was himself in no default, or, as the judge at the trial put it, that the transaction failed because of the defendant’s fault and not by reason of the plaintiff’s own neglect. If he was not himself ready and willing to carry out the agreement, he cannot maintain this action. Pead v. Trull, 173 Mass. 450. This was substantially the instruction given to the jury; and we are of opinion that it was right. Not having asked for more specific instructions at the trial, the plaintiff cannot now complain of the judge’s use of the word “ tender.” It is doubtless true that this word, as commonly used in such a connection, imports nothing more than the manifesta [486] tion of a present readiness, willingness and ability to perform, provided the other party will perform on his part. Cook v. Doggett, 2 Allen, 439, 441. But because this meaning is involved in the word, its use was sufficient in the first instance: If the plaintiff had thought that his interests required it, he doubtless would have asked the judge to make this explanation. Barker v. Loring, 177 Mass. 389. Commonwealth v. Meserve, 154 Mass. 64, 75. Exceptions overruled.