In this action of contract the defendants excepted to the denial of a motion for directed verdicts under three counts. Count 1 alleged the defendants' refusal to convey land on Green Street in Ludlow in accordance with their agreement, that the plaintiffs had made expenditures in improving the premises and in securing a survey and layout, and that the plaintiffs had been ready, able and willing
At best for the plaintiffs the evidence showed these facts: There was an oral agreement, resulting from conversations in 1954, to convey land on Green Street for $6,000 when the title was cleared of a possible defect relating to "some twenty feet or so of the land." The plaintiff Fred Bruni (hereinafter, the plaintiff) wanted also to buy land on the other side of the street, from owners LaRoche, in order to recoup the development costs, and "made it clear" to the defendants that he would not purchase one parcel without the other. The plaintiff expected to use gravel from the subject land to grade Green Street. The defendant Rose Andre in October, 1954, said to the plaintiff that she was going to sell directly to him, told him to take care of all the public utilities and the road, and said "I will make arrangements with you, Bruni, for half of the price on the water main, on $6,000 we agreed for the land ... My word is gold bond, you can depend, can't give it to you in writing now because there's a question on the land." A deed obtained from others in March, 1956, removed the question. The title could have been deemed marketable before that time. The plaintiff, in reliance on the agreement, acquired the other land on Green Street, built homes thereon, cleared Green Street, partially cleared the premises, filled and graded Green Street, and caused to be installed a water line. In the winter of 1955, when the plaintiff had been clearing
The bill of exceptions states that no deed was ever tendered to the plaintiff by the defendants and no money in payment was ever tendered or paid by the plaintiff to the defendants.
1. The action on the contract failed because the statute of frauds was pleaded. Such right as the plaintiffs have at law is to recover for or because of expenditures under a repudiated agreement. Cook v. Doggett, 2 Allen, 439, 440. Root v. Burt, 118 Mass. 521, 523. Cave v. Osborne, 193 Mass. 482, 485. DeMontague v. Bacharach, 181 Mass. 256; S.C. 187 Mass. 128, 131. Brown v. Woodbury, 183 Mass. 279, 282. Dalton v. American Ammonia Co. 236 Mass. 105, 107. Glazer v. Lerman, 330 Mass. 673, 675. See Long v. Athol, 196 Mass. 497, 506. In the circumstances the declaration may be construed to assert such right.
The plaintiffs' reliance on part performance is fruitless as part performance is significant only in equity. Cousbelis v. Alexander, 315 Mass. 729, 732.
The plaintiffs do not contend that there was a separate
2. The plaintiffs in a respect to be stated have failed to prove a cause of action and we therefore do not reach the question whether any of the plaintiffs' expenditures, or any benefit to the defendants therefrom, would be recoverable. See Cook v. Doggett, 2 Allen, 439, 441 (part payment recoverable, but not the expense of cutting hay on the defendant's land); Dowling v. McKenney, 124 Mass. 478, 481 (work partly done on defendant's land pursuant to the contract could be found beneficial to him, and a basis for recovery); M. Ahern Co. v. John Bowen Co. Inc. 334 Mass. 36, 39-40; Albre Marble & Tile Co. Inc. v. John Bowen Co. Inc. 338 Mass. 394, 399-401; Draper v. Turner, ante, 616, 618-619; 10 Harv. L. Rev. 451; Restatement: Contracts, § 348, comment b; Williston, Contracts (Rev. ed.) § 534; Woodward, Quasi Contracts, c. VI.
3. The plaintiffs, to recover upon the defendants' repudiation, have the same burden which would lie in an action on the contract (see Hapgood v. Shaw, 105 Mass. 276, 279-280), that is, to show that they had so acted as to accrue rights under the contract. They must show that "the transaction failed because of the defendant's fault and not by reason of the plaintiff's own neglect." Cave v. Osborne, 193 Mass. 482, 485. L.R.A. 1916D, 483. The failure of the plaintiffs to do this defeats the action.
The plaintiffs were entitled to a deed only upon payment of the purchase price. Pead v. Trull, 173 Mass. 450, 451-452. Cook v. Doggett, 2 Allen, 439, 440. Beck v. Doore, 319 Mass. 707, 710. See Leigh v. Rule, 331 Mass. 664, 668. There was no evidence of the ability of the plaintiffs to perform or of tender by them, or of any repudiation by the defendants prior to action. In the circumstances some
The defendants' reliance on the statute of frauds after the action was brought, and a declaration filed which could be construed to assert rights under the contract, does not avail the plaintiffs. It does not establish the ability of the plaintiffs to perform seasonably or that, on seasonable demand for deed and a tender, the defendants would not have conveyed.
The declaration and the evidence do not bring the plaintiffs within the cases of King v. Welcome, 5 Gray, 41, and Freeman v. Foss, 145 Mass. 361. The plaintiffs' right must be predicated upon nonperformance of the contract. An allegation of nonperformance must be implied in count 2, if it is to be construed as stating any cause, for there is no right to recover the consideration given for a parol undertaking to convey where the defendant is willing to perform. Coughlin v. Knowles, 7 Met. 57. Riley v. Williams, 123 Mass. 506. Twomey v. Crowley, 137 Mass. 184. In the King case the plaintiff declared in quantum meruit for work and labor for the defendant, and the defendant, admitting the performance of the labor and its value, set up a contract to work for a longer period, which was within the statute, and that it was not complied with by the plaintiff. In distinguishing Coughlin v. Knowles, supra, the court said that there the action failed because there was no failure of the agreed upon consideration and no basis for implying the promise necessary for the action, while in the King case it was the defence which failed. Whatever the validity of the distinction (see Corbin, Contracts, § 332, p. 177; § 334, p. 183; Keener, Quasi-Contracts, pp. 234-238; Woodward,
4. The motion for directed verdicts should have been allowed. The other exceptions need not be considered.
Judgment for the defendants.