Equity Pleading and Practice, Decree. Contract, Performance and breach. Waiver. The entry in a suit in equity of an order, which is called a "final decree," dismissing the bill while a bill of exceptions is pending can have no greater effect than an order for a decree.
In a suit in equity to enforce the specific performance of a contract to sell the plaintiff a certain farm for $5,000, where it appeared that by the terms of the contract the whole of the purchase money was to be paid in cash within ten days, there was evidence that the plaintiff tendered to the defendant a certified check for $1,000 on which were written the words "as part payment for farm bought for $5,000," that the plaintiff put this check on the defendant's desk with the defendant's knowledge, that the defendant refused to accept the check as a part of the purchase money and never deposited it, but retained it in his possession for nearly three weeks in the drawer of the desk until he took it out and carried it to his counsel, and that, after the ten days allowed by the contract for a cash payment had expired, the plaintiff tendered a certified check for $4,000 to the defendant, which the defendant refused. Held, that a finding was warranted that the defendant had not waived the requirement of payment in cash within ten days, and that the retention of the check with the writing thereon did not as matter of law constitute an acceptance of the contract with modified terms of payment.
BRALEY, J.
The final decree dismissing the bill having been irregularly entered while the plaintiff's exceptions were pending, it can have no greater force than an order for a decree. Prescott v. Prescott, 175 Mass. 64, 68. Boston Maine Railroad v. Hunt, 210 Mass. 128, 132. And the only question before this court for revision is, whether the decision of the presiding judge as matter of law was warranted by the evidence. Kennedy v. Welch, 196 Mass. 592.
The bill asks for the specific performance of a contract to sell and convey to the plaintiff a farm of about one hundred and fifty acres owned by the defendant, and the judge correctly ruled that the correspondence of the parties shown by two letters and the evidence as to the township where the land was located were sufficient to satisfy the R.L.c. 74, §§ 1, 2. Nickerson v. Weld, 204 Mass. 346, 354.
It was necessary for the plaintiff, however, to prove that he tendered performance on his part, and the evidence as to his compliance with the terms of the contract relating to payment of the purchase price was conflicting. Sarkisian v. Teele, 201 Mass. 596. The contract must be construed as calling for payment of the entire amount in cash within ten days. But the plaintiff, while conceding that he did not tender the money, contended and testified, that the defendant after the time had expired agreed to take, and accepted and retained, his certified check which purported on its face to be given in part payment for the farm. A mutual agreement that the time should be extended and the price paid by instalments undoubtedly could have been made, or from the defendant's course of dealing it might have been found that, not caring to insist on this provision, she had waived it. Carpenter v. Pocasset Manuf. Co. 180 Mass. 130. The defendant's denial, however, of any intention to depart from the literal requirements of the contract, or of any understanding that the check was to be treated as a partial payment, and her statement of the reasons why the check which she did not negotiate was retained for nearly three weeks, and then delivered to her counsel, were for the consideration of the trial judge in connection with the plaintiff's testimony. The issue of waiver thus presented was one of fact. Borden v. Fine, 212 Mass. 425.
It is obvious from the judge's findings, which depended upon the view he took of the credibility of the parties, that in his judgment the plaintiff had failed to sustain the essential allegations of the bill. We cannot say there was no evidence to support his conclusion, and accordingly the first, third, fifth and sixth requests for rulings could not be given. The further ruling, that the retention of the check did not as matter of law constitute an acceptance of the contract with the modified terms of payment as of the date of the check, necessarily resulted from what he previously had found and ruled.
Exceptions overruled.