Kenyon v. Suburban Realty Corp.

Pierce, J. This action of contract was twice tried in the Municipal Court of the City of Boston, before the Chief Justice of that court. The Appellate Division ordered a new trial on the report of the first trial, and entered an order “Report dismissed” on the report of the second trial. The case is before this court on the appeal of the defendant. The contract upon which the plaintiff seeks to recover damages for the alleged failure of the defendant to sell to the plaintiff certain parcels of land is dated Boston, July 2,1919, and, omitting the names and titles of the plaintiff and the defendant, reads as follows: "Dear Sir: In consideration of the release to the trustees of E. N. Foss, signed this day, the Suburban Realty Corporation will give you the right for ninety days to buy from them lots and houses numbered 291, 289, 288, 285, 284, 283, at a price which shall pay to them entire cost, taxes, and interest, as represented by their books or E. N. Foss’ books.” The plaintiff sought to recover as damages the difference between the fair market value of the estate referred to in the above memorandum of contract and the cost of the same, taxes, and interest as represented by the books of the Suburban Realty Corporation or the books of E. N. Foss. The declaration of the plaintiff alleged “that he has always been ready and willing to perform his part of said contract but the defendants have refused and neglected to carry out the terms, conditions and obligations entered into by them.” It appeared in evidence that the wife of the plaintiff had previously held title to this property, the beneficial ownership being in the plaintiff; that early in the year 1919, at the request of the trustees for Eugene N. Foss, arrangements had been made for the conveyance of the property to the defendant, and the plaintiff had also released to said trustees certain rights, all of which were the consideration for the option above set forth; that the written agreement upon which the plaintiff declares, merely reduced to writing a former verbal arrangement which the plaintiff had had with the defendant corporation; that the word “cost” [576] in the said agreement represented the amount of the construction loan on each of said houses, plus anything that had been expended upon the property in the way of repairs, improvements and expenses, with a credit for all income from the property, and that the balance was the amount which the plaintiff was to pay for the property under his option. There was also evidence that during the ninety days the plaintiff asked one Brown, who was treasurer of the defendant corporation up to July 28, and thereafter one Weeks, who succeeded him in office, for the figures upon the lots, and at all times was promised them. The plaintiff testified that during the last week in August, and again in the middle of September, he told Weeks that he had customers and needed the figures; that in September he told Weeks he was afraid he would lose his option and Weeks replied that they did not do business that way, that he would get the figures, although it would be a hard job. Brown testified in substance that he told the plaintiff when he asked for the figures “he would confer with Weeks, and give him the figures, and that after that he r shirked it on to Weeks/ ” Weeks testified, when called by the plaintiff, that the plaintiff asked him for the cost figures at least half a dozen times in the ninety days; that before October 2 he said he would give them as soon as he could make them up; that after October 2 he informed the plaintiff he was instructed not to give them. The plaintiff testified that during the lifetime of the option he bad an offer from one Higgins and one Hodge for each house and lot, and had several other customers for the property, but delayed taking any definite action until he could find what the cost figures were; that he did not have the cash to take up the property or any building agreement of sale to third persons, but had the offers above referred to; that he could not say he used words of acceptance to either Weeks or Brown; “that he never notified the defendant in writing of acceptance;” that he did not offer any price to it during the ninety days and that he never ■asked to see the books or take off the figures. He further testified that he knew the amount and rate of interest of the construction loan on the premises and of the schedule of rents therefrom, but had no knowledge of the repairs or of the expenses of rental. Upon the foregoing facts the plaintiff contends that he has [577] a right to recover on his declaration, without an allegation or proof that within ninety days from the date of the optional contract he had notified the defendant that he elected to exercise the option, and was ready to pay the price when he should receive the information which he requested and which the officers in response thereto had many times promised to give to him. He rests this position upon the claim that the optional contract impliedly required the defendant to furnish the plaintiff with information derived from its books which would enable him to exercise intelligently the rights granted him under the option; and upon the further claim that the neglect and refusal of the defendant to disclose the costs of the houses as shown by the books, after many promises so. to do, was a repudiation of the contract by the defendant which excused the plaintiff from a declaration of his election to accept the offer and from an actual tender of money before the defendant had done what it had engaged to do. The optional contract given to the plaintiff by the defendant, supported as it was by a valuable consideration, bound the defendant to keep its offer in the terms of the option open for the period of ninety days from its date. The plaintiff assumed no obligation to the defendant thereunder. The defendant did not during the period of ninety days withdraw the offer of sale, nor did it place itself in a position where it was impossible to perform. We do not think the contract of the defendant contained the implied agreement that it would furnish the plaintiff with figures from its books which would enable him to make an intelligent choice whether he would accept the offer of the defendant or not. Nor do we think that the promise of its treasurers so to do became with their promises an element of the original contract, which required action on the part of the defendant, and excused non-action on the part of the plaintiff. No acts of the defendant are disclosed which hindered or prevented the fullest examination of its books by the plaintiff or by any qualified agent whom it might select. In the absence of notice from the plaintiff to the defendant that he had elected to accept the offer at a price named or to be ascertained from the books, no contract of purchase and sale ever came into existence. The neglect and refusal of the defendant to furnish the promised information cannot be made the basis of an action for damages for the refusal to sell the prop- [578] erty, at least in the absence of any evidence showing an agreement to purchase at whatever price the book figures disclosed. Stokes v. Carpenter, 166 App. Div. (N. Y.) 441; affirmed in 218 N. Y. 705. In the opinion of a majority of the court it results that the order, “Report dismissed,” is reversed, and judgment is to be entered for the defendant. So ordered.