The defendant appeals from a decree of a Probate Court annulling a conveyance of real estate made "in consideration of love and affection" and ordering a reconveyance to the plaintiff. The trial judge found, in his report of material facts (the evidence is not reported), that the conveyance was made by the plaintiff to the defendant for "safe keeping" while the plaintiff was abroad, "and it was intended that he would get the property back when he returned to this Country." The only issue argued by the defendant (see Commonwealth v. Bernier, 366 Mass. 717 , 720 ) is whether the plaintiff's "unclean hands" bar him from equitable relief. The Statute of Frauds is not in issue. The defendant relies on the trial judge's finding that upon the plaintiff's return (the defendant having refused to reconvey the property to him) he had a deed prepared purporting to convey the property to the parties as joint tenants on which the defendant's signature was forged and which was recorded. The unclean hands defense has no application in this case because the plaintiff "does not . . . rely here on his improper conduct . . . or upon the [forged] deed . . . and no harm has been caused to the defendant by the deed . . . ." Barche v. Shea, 335 Mass. 367 , 371 (1957). Rotondi v. Rotondi, 325 Mass. 503 (1950). Compare Arrow Plywood Corp. v. Eighty Boylston St. Corp. 360 Mass. 705 , 706-707 (1972).
In this action to recover the deposit paid by the plaintiffs when they submitted their allegedly unaccepted offer to purchase the defendants' building, the plaintiffs' motion for summary judgment under G. L. c. 231, Section 59 (as amended through St. 1965, c. 491, Section 1), was improperly allowed, as it appears from the answers of one of the defendants to certain interrogatories which accompanied the motion, read in the light most favorable to the defendants (McMahon v. M & D Builders, Inc. 360 Mass. 54 , 56 , and case cited), that the plaintiffs' offer may have been orally accepted and thereby caused
to ripen into a contract enforceable against them (but see Wasserman v. Roach, 336 Mass. 564 , 567-568 ). For purposes of the motion it is immaterial that those answers may have been disbelieved (compare Kesler v. Pritchard, 362 Mass. 132 , 134 ); and while some of the other answers contained admissions damaging to the defendants, that will not prevent their introducing additional evidence on those issues or explaining those admissions at trial (McMahon v. M & D Builders, Inc., supra, at 61). It follows that the plaintiffs failed to sustain their burden of affirmatively showing the absence of any genuine issue of material fact. Kesler v. Pritchard, supra, and cases cited.
Order for judgment reversed.