3 Mass. App. Ct. 724

March 14, 1975

The defendant appeals from a decree of the Superior Court which ordered specific enforcement of the plaintiff's option to purchase the defendant's farm. The defendant's attack on the validity of the option for (among other reasons) (1) lack of consideration and (2) illegality, fails. 1. Apart from the nominal consideration of $1 recited in the option agreement -- concerning which the trial judge was not plainly wrong in finding that "Medeiros gave Pettey a dollar and Pettey returned it to Medeiros" (Allen v. Rakes, 359 Mass. 1, 5 [1971]; see George v. Schuman, 202 Mich. 241, 248 [1918]) -- the work performed by the plaintiff on a private roadway leading to the farm supplied the necessary consideration for the option. See Graphic Arts Finishers, Inc. v. Boston Redevelopment Authy. 357 Mass. 40, 42-43 (1970). Though the provision in the option agreement for the work was phrased as a condition, its performance (and there was no contention that the plaintiff failed to perform) bound the defendant to the option agreement, as is generally the case with a unilateral contract. Merrill v. Kirkland Constr. Co. Inc. 365 Mass. 110, 113-114 (1974), and cases cited. Williston, Contracts, Section 1439, pp. 924-927 (3d ed. 1968). 2. The record, including the trial judge's voluntary findings and a transcript of the testimony (see Massachusetts Mut. Life Ins. Co. v. Massachusetts Life Ins. Co. 356 Mass. 287, 288 [1969]), does not bear out the defendant's contention that the transaction was illegal because of the provision in the option agreement that the deed was not to be recorded until after the defendant's death, the purpose of which the defendant contends was somehow (just how is not clear) to circumvent the welfare authorities. The judge found only that "[t]here was discussion of Mr. Pettey's receiving old age assistance and whether the transaction would affect his right thereto," and she was well justified in not going further on the meager and equivocal evidence on this point. See Nussenbaum v. Chambers & Chambers Inc. 322 Mass. 419, 423 (1948); Adamsky v. Mendes, 326 Mass. 603, 607 (1950). 3. The trial judge found on oral testimony (and her findings are not plainly wrong; see the Massachusetts Mut. Life Ins. Co. case, supra) "that the defendant understood the terms in the agreement when he signed it . . . [and] that there was no fraud, duress or other basic unfairness involved in the transaction." We do not reach a different conclusion. This disposes of the defendant's other contentions in this connection. O'Brien v. Boland, 166 Mass. 481, 482-483 (1896). Meserve v. Jordan Marsh Co. 340 Mass. 660, 662-668 (1960). Peters v. Wallach, 366 Mass. 622, 628-629 (1975). 4. The decree must, however, be modified to include the right of the defendant to occupy the house on the premises during his lifetime free of charge. The plaintiff admitted such right, both in his testimony and in his brief. The Superior Court shall modify the decree accordingly and, as so modified, the decree is affirmed.

So ordered.


3 Mass. App. Ct. 724

March 25, 1975

This petition for a writ of certiorari, whereby the petitioner seeks to quash so much of the decision of the respondent

Page 725

Civil Service Commission (commission) as reduced a penalty, imposed by the petitioner on the respondent Filippa T. Pizzi because of her conduct on January 3, 1973, from discharge as an employee to suspension for four months (see G. L. c. 31, Section 43[b], as amended through St. 1970, c. 72, Section 2), was properly dismissed, as the petitioner has failed to sustain its burden of showing error of law on the face of the record. Bennett v. Aldermen of Chelsea, 361 Mass. 802, 807 (1972). There is no merit in the contention that the commission erred in not giving due consideration to Pizzi's misconduct on earlier occasions and her prior suspensions in determining the appropriate penalty (see Mayor of Medford v. Judge of First Dist. Court of E. Middlesex, 249 Mass. 465, 473 [1924]; compare MacKenzie v. School Comm. of Ipswich, 342 Mass. 612, 617-620 [1961]) if for no other reason than the petitioner's failure seasonably to call Pizzi's employment record to the commission's attention.

Judgment affirmed.