This is a suit brought by the purchaser for specific performance of an agreement to sell land. From a final decree ordering specific performance, the defendants appeal. The evidence is reported.
The agreement, a two-page standard form of option agreement used by the plaintiff, along with a simultaneously executed three-page rider is dated July 3, 1967. By it the defendants Katsikas and Psoinos granted the plaintiff an option to purchase a parcel of land, adjacent to a shopping center, for $100,000, for use as a gasoline service station. The time during which the option could be exercised, after several written extensions, was fixed by the
The rider to the agreement was incorporated therein at the defendants' insistence. In part, it stated: "Notwithstanding anything contained in said Option and in this Rider which is a part of said Option, it is agreed and understood by the Vendor and Purchaser that if said Option is exercised by the Purchaser and the closing shall not have occurred on or before October 11, 1968,
The land which was the subject of this agreement, and which was specifically bounded and described therein, was a parcel with the frontage of 180 feet and a depth of 140 feet located at the southern corner of a parking lot serving a shopping center in the town of North Andover known as "North Andover Mall." It was to be conveyed "subject to a thirty (30') foot [right of way] ... along the southerly sideline...." On September 9, 1968, the plaintiff showed the defendants
The trial judge found "that any delay in the closing ... was caused by [the defendants]"; that "at no time was any demand made upon the [plaintiff] ... to close the conveyance ... either on or before the closing date of October 11, 1968, or at any time subsequent thereto"; and that the plaintiff and the defendants "orally agreed to extend the time for performance until after the [defendants] ... prepared a modified description of the property to be conveyed, and that the [defendants] ... suffered no prejudice by reason of the delay."
An option contract for the purchase of land typically provides one terminal date for exercise of the option and another terminal date for closing. Unless the parties have otherwise agreed, the time for exercise of the option is generally considered to be of the essence, but the closing date is not. Boston & Worcester St. Ry. v. Rose, 194 Mass. 142, 149 (1907). Corbin, Contracts, § 273, pp. 599-600. Tender of performance on time may be made an express condition, however, and we are of the opinion that the rider provision quoted was such an express condition. Similar language has been so construed. Friedman v. Winshall, 343 Mich. 647 (1955).
The provision making tender of performance on time
We are unable to find in the evidence any support for the foregoing finding of the trial judge. There was much testimony concerning the meeting on September 9, at which the defendants objected to the station layout and at which the parties might be found to have agreed to modify the description of the land to be conveyed. However, there was no evidence indicating that anything was done or said at that meeting, or thereafter, to modify or waive the agreed upon closing date. The testimony indicating that the defendants, after October 11, 1968, continued to act as if a sale would ultimately be consummated, does not by itself tend to show that they regarded themselves as still bound by the original option agreement. Nor does the testimony as to discussions between the parties after October 11, 1968, tend to show an understanding that they had ever amended the agreed upon closing date or waived it.
In the absence of waiver or modification, the contract provision terminating the agreement upon passage of the closing date without tender of performance must be given effect. At the expiration of the closing date, without tender by either party, the contract was at an end, and both parties were discharged. Corbin, Contracts, § 663, p. 181.
The final decree is reversed, and a new final decree is to be entered dismissing the bill.