JACOB KING & another vs. CHARLES H. CONNORS & others.

CARROLL, J. In March, 1913, the plaintiffs agreed to sell and the defendants to buy the hotel property of the plaintiffs in Greenfield, Massachusetts, "on or before May first next, for the sum of thirty thousand ($30,000) dollars." One thousand dollars was deposited with Charles H. Keith " on account of the purchase price of said property." The remainder was to be paid as follows: "$14,000 in cash, upon delivery . . . of a good and sufficient warranty deed of the premises, clear of all incumbrances, except taxes assessed April 1st., 1913 . . . on or before said first day of May next, and the balance of the purchase price, viz: - $15,000, is to be paid . . . by mortgage upon the premises."

The agreement was in writing, and in addition to the real estate therein described it included all the personal property in the hotel, with the exception of that in three rooms over the bar room and a few other articles specially mentioned; it further provided that if the defendants failed to comply with its conditions the $1,000 already deposited with Keith was to be paid to the plaintiffs, "as agreed upon and liquidated damages."

May 1, 1913, the plaintiffs were not ready and able to perform. On the second day of May, however, they were ready and able to fulfil the terms of the sale. On the morning of that day they notified the attorney for the defendants of their ability and desire to act, and were told it was too late, that the sale should have been completed on the first day of May, and that, the plaintiffs having failed in this respect, the defendants were therefore excused from performance.

Thereupon this bill in equity was brought to specifically enforce the contract. The facts being found by a master, a decree was entered in the Superior Court [Note p262] dismissing the bill.

In equity, under an agreement like the one before us, time is not considered of the essence of the contract unless it expressly

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so appears or is to be implied from the attending circumstances. Mansfield v. Wiles, 221 Mass. 75. Lennon v. Napper, 2 Sch. & Lef. 682, 684. See 31 Law Quarterly Review, 253. The written instrument contained no express stipulation making the time stated of the essence of the contract, and there is nothing in the terms of the contract, in the nature of the property to be conveyed, or in the existing circumstances, which requires an inference that the parties intended May 1, 1913, to be the necessary and essential time for carrying the sale into effect.

On the second day of May the plaintiffs' tenant had not surrendered the lease of a portion of the premises occupied by him, although it was agreed that the premises were to be free of all incumbrances. The tenant, however, had promised in writing to execute a release and surrender the premises whenever required, within thirty days. This was a sufficient compliance with the contract. Mansfield v. Wiles, supra. Richmond v. Gray, 3 Allen 25, 31. Dresel v. Jordan, 104 Mass. 407, 415.

It follows that the decree must be reversed and a decree entered for the plaintiffs, the terms of which are to be settled by a judge of the Superior Court.

So ordered.

H. E. Ward, (W. A. Davenport with him,) for the plaintiffs.

F. J. Lawler, for the defendants.