Opinion
March 17, 1926.
March 19, 1926.
Present: RUGG, C.J., CROSBY, PIERCE, CARROLL, WAIT, JJ.
Contract, Performance and breach. Tender.
An agreement for the purchase of real estate providing for the payment of the purchase price "in cash" is not performed by the purchaser's tendering a certified check of a third party accompanied by a refusal by the purchaser of a request by the seller to get the check cashed.
CONTRACT for $500, deposited as part of the purchase price of real estate to be sold by the defendant to the plaintiff. Writ in the Municipal Court of the City of Boston dated January 23, 1924.
Material facts found by the judge of the Municipal Court are described in the opinion. Having found for the defendants, he reported the action to the Appellate Division, who ordered the report dismissed. The plaintiff appealed.
The case was submitted on briefs.
B.H. Chertok W.M. Blatt, for the plaintiff.
J.E. Kelley J.K. Tertzag, for the defendants.
This is an action to recover a deposit made on account of the purchase price at the time of signing an agreement in writing whereby the plaintiff was to buy and the defendants to sell certain real estate. The evidence need not be narrated. Although conflicting, it justified the finding of the trial judge that "the plaintiff has never been able, ready and willing to carry out his agreement with the defendant." This finding bars recovery. Carpenter v. Holcomb, 105 Mass. 280, 284. Sleeper v. Nicholson, 201 Mass. 110. Clearly the plaintiff did not offer to perform his part of the agreement according to its terms. The tender of a certified check of a third person accompanied by refusal by the plaintiff to get it cashed at the request of the defendants was not the equivalent of payment "in cash" required by the agreement. The doctrine of Old Colony Trust Co. v. Chauncey, 214 Mass. 271, is inapplicable.
Order dismissing report affirmed.