246 Mass. 338

September 19, 1923 - October 8, 1923

Franklin County


Res Judicata. Equity Jurisdiction, Specific performance. Damages, For breach of contract. Contract.

A final decree for the plaintiff in a suit in equity for specific performance of a contract to sell and convey real estate is a bar to an action of contract afterwards brought at law for damages due to expense, loss of use and occupation of the real estate, wrongful cutting of timber, harvesting of crops and carrying away of a fence during the period of wrongful withholding by the defendant of the premises described in the suit in equity, those subjects being incidental and subsidiary to and within the scope of the inquiry and adjudication in the suit in equity.

CONTRACT for damages resulting from a breach of con tract to convey real estate. Writ dated January 10, 1922.

The declaration is described in the opinion. The defendant demurred. The demurrer was heard by Lummus, J., who ordered that it be sustained. The plaintiff appealed.

W. A. Davenport, (C. Fairhurst with him,) for the plaintiff.

J. T. Bartlett, (P. H. Ball with him,) for the defendant.

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RUGG, C.J. This is an action of contract. It is alleged in the declaration that the plaintiff agreed to buy and the defendant to sell certain real estate; that in consequence of refusal by the defendant to carry out the contract, the plaintiff was compelled to bring suit in equity for specific performance of the contract and prevailed; that the plaintiff was thereby put to expense and lost the use and occupation of the premises for a long time, and that during that period of wrongful withholding the defendant cut timber, harvested apples, carried away manure and removed a fence on and from the premises. The demurrer of the defendant was sustained. The plaintiff's appeal brings the case here. Samuel v. Page-Storms Drop Forge Co. 243 Mass. 133.

The validity, nature, extent and breach of the contract for purchase and sale of real estate all were necessarily at issue in the suit for specific performance. All damages arising from its breach by the defendant were also properly subject to adjudication in that suit. Wrongful deprivation of possession of the real estate was a matter involved in the suit for specific performance of the contract for its conveyance. Interest on the purchase price due from the plaintiff and use and occupation of the land while held contrary to the contract by the defendant were inseparably connected with the agreement for its purchase and sale. When equity took jurisdiction of the main subject by ordering specific performance, all incidental and subsidiary matters also came within the scope of its inquiry and adjudication. Equity will grant complete relief in such circumstances and thus prevent unnecessary litigation. All claims of the plaintiff against the defendant flowing from his breach of that contract ought to have been adjusted in the suit for specific performance. They cannot be made the subject of a separate action. Eastman v. Simpson, 138 Mass. 348. Sanders v. Bryer, 152 Mass. 141. Holyoke Envelope Co. v. United States Envelope Co. 186 Mass. 498. Noyes v. Bragg, 220 Mass. 106. It is the general rule that all damages resulting from a specified cause of action must be assessed in one proceeding. A single cause of action cannot be split into fractions and thus made the basis of

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several proceedings. Warren v. Comings, 6 Cush. 103. Barnes v. Huntley, 188 Mass. 274. Clark v. Baker, 5 Met. 452. Bennett v. Hood, 1 Allen 47. Smith v. Way, 9 Allen 472. Stevens v. Tuite, 104 Mass. 328, 335. McCaffery v. Carter, 125 Mass. 330. Osborne v. Atkins, 6 Gray 423. James v. Newton , 142 Mass. 366, 371. Trask v. Hartford & New Haven Railroad, 2 Allen 331. Cole v. Bay State Street Railway, 223 Mass. 442. Dalton v. American Ammonia Co. 231 Mass. 430, 433. It follows that the judgment for the plaintiff in the equity suit for specific performance, as set forth in the declaration, was a bar to damages for breach of the same contract. Newburyport Institution for Savings v. Puffer, 201 Mass. 41, 46.

Since the plaintiff's declaration is wholly founded on breach of the contract to purchase and sell the real estate, the demurrer was rightly sustained. Whether independent torts are there set forth is a question not presented on this record.

Order sustaining demurrer affirmed.