1 Mass. App. Ct. 842

September 13, 1973

In this action of contract the plaintiff seeks to recover the sum of $1650 which he paid to the defendant towards the purchase price of $3500 for a vacant lot of land adjoining the plaintiff's property. There was a finding for the defendant. The parties had agreed that the sum of $3500 would be paid at the rate of $50 per month. The plaintiff made a first payment of $300 on November 30, 1967, and thereafter made irregular payments of $50 each in the aggregate amount of $1350 up to and including March 29, 1970. By letter on July 22, 1970, through his counsel, the plaintiff informed the defendant that he was prepared to pay the balance due and requested that a deed be executed for delivery to him. There is no evidence that any reply to this request was received from the defendant or his attorney or that any communication was received pertaining to the agreement before the present action for recovery of the $1650 was instituted by the plaintiff on September 22, 1970. A deed by the defendant was executed in February, 1971, five months after the commencement of the action, but never legally tendered to the plaintiff. The law is clear that the July 22 letter did not constitute a legal tender of payment. Mondello v. Hanover Trust Co. 252 Mass. 563 , 567 (1925). Consequently, we are confronted with a situation in which neither party has completed his side of the bargain or made a legal tender to the other. It has long been established that absent a legal tender on the part of either party, neither can be deemed in default. Corbin, Contracts, Section 663. As a result the instant contract, in which time is certainly not of the essence, is still in its executory stage, and any action brought under it is premature until such time as a tender is made in order to test the other party's ". . . ability and willingness to perform . .." Beck v. Doore, 319 Mass. 707 , 710 (1946).

Order dismissing report affirmed.