FRED P. BRUNI & another vs. AMERICO G. ANDRE & another.

WHITTEMORE, J. In this action of contract the defendants excepted to the denial of a motion for directed verdicts under three counts. Count 1 alleged the defendants' refusal to convey land on Green Street in Ludlow in accordance with their agreement, that the plaintiffs had made expenditures in improving the premises and in securing a survey and layout, and that the plaintiffs had been ready, able and willing

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to perform and had demanded a deed. Count 4 alleged that "as part of the negotiations . . . the plaintiffs agreed to cut, grade and install water in Green Street" for the mutual benefit of the parties, that the gravel for the road "in accordance with the agreement" was to be taken from the premises, and that the defendants had refused to convey and to permit the removal of gravel so that the plaintiffs were put to additional expense. Count 2 alleged the agreement, the installation of water lines and the building of the street, with consequent increase in the value of the premises. It did not allege refusal to convey. The defendants denied generally and pleaded the statute of frauds. The writ is dated July 26, 1956.

At best for the plaintiffs the evidence showed these facts: There was an oral agreement, resulting from conversations in 1954, to convey land on Green Street for $6,000 when the title was cleared of a possible defect relating to "some twenty feet or so of the land." The plaintiff Fred Bruni (hereinafter, the plaintiff) wanted also to buy land on the other side of the street, from owners LaRoche, in order to recoup the development costs, and "made it clear" to the defendants that he would not purchase one parcel without the other. The plaintiff excepted to use gravel from the subject land to grade Green Street. The defendant Rose Andre in October, 1954, said to the plaintiff that she was going to sell directly to him, told him to take care of all the public utilities and the road, and said "I will make arrangements with you, Bruni, for half of the price on the water main, on $6,000 we agreed for the land . . . My word is gold bond, you can depend, can't give it to you in writing now because there's a question on the land." A deed obtained from others in March, 1956, removed the question. The title could have been deemed marketable before that time. The plaintiff, in reliance on the agreement, acquired the other land on Green Street, built homes thereon, cleared Green Street, partially cleared the premises, filled and graded Green Street, and caused to be installed a water line. In the winter of 1955, when the plaintiff had been clearing

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brush and trees on the premises for two or three days, the defendant Americo Andre asked him to stop cutting as the title had not been cleared and he "preferred to wait until the title was cleared before any work was done on the land itself." When in the spring of 1955 the plaintiff asked permission to take gravel from the parcel to fill Green Street he was told "we don't like to do nothing yet because we are waiting until we get the title clear." In the winter of 1954-1955, the plaintiff and the defendants discussed the plaintiff's taking over the defendants' house on adjacent East Street and building a new house for them in connection with which the defendants were to convey all of their land, except the house lot of the defendants, but the details were never agreed on and the matter was dropped. The plaintiffs never got the subject premises. There was evidence of the cost of building Green Street, and of the plaintiff's expenditures on the premises and, subject to the defendants' exception, evidence that the plaintiff had paid the LaRoches one half of their payment to the city of Springfield for installing water.

The bill of exceptions states that no deed was ever tendered to the plaintiff by the defendants and no money in payment was ever tendered or paid by the plaintiff to the defendants.

1. The action on the contract failed because the statute of frauds was pleaded. Such right as the plaintiffs have at law is to recover for or because of expenditures under a repudiated agreement. Cook v. Doggett, 2 Allen 439, 440. Root v. Burt, 118 Mass. 521, 523. Cave v. Osborne, 193 Mass. 482, 485. DeMontague v. Bacharach, 181 Mass. 256; S. C. 187 Mass. 128, 131. Brown v. Woodbury, 183 Mass. 279, 282. Dalton v. American Ammonia Co. 236 Mass. 105, 107. Glazer v. Lerman, 330 Mass. 673, 675. See Long v. Athol, 196 Mass. 497, 506. In the circumstances the declaration may be construed to assert such right.

The plaintiffs' reliance on part performance is fruitless as part performance is significant only in equity. Cousbelis v. Alexander, 315 Mass. 729, 732.

The plaintiffs do not contend that there was a separate

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contract in respect of water line costs, not subject to the statute, which could support a verdict notwithstanding the failure to allege such a contract (compare Murphy v. Brilliant Co. 323 Mass. 526, 530), and we do not think the separate undertaking, if any, is reasonably to be construed as more than an agreement to deduct water line costs from the purchase price at the time of conveyance.

2. The plaintiffs in a respect to be stated have failed to prove a cause of action and we therefore do not reach the question whether any of the plaintiffs' expenditures, or any benefit to the defendants therefrom, would be recoverable. See Cook v. Doggett, 2 Allen 439, 441 (part payment recoverable, but not the expense of cutting hay on the defendant's land); Dowling v. McKenney, 124 Mass. 478, 481 (work partly done on defendant's land pursuant to the contract could be found beneficial to him, and a basis for recovery); M. Ahern Co. v. John Bowen Co. Inc. 334 Mass. 36, 39-40; Albre Marble & Tile Co. Inc. v. John Bowen Co. Inc. 338 Mass. 394, 399-401; Draper v. Turner, ante, 616, 618-619; 10 Harv. L. Rev. 451; Restatement: Contracts, Section 348, comment b; Williston, Contracts (Rev. ed.) Section 534; Woodward, Quasi Contracts, c. VI.

3. The plaintiffs, to recover upon the defendants' repudiation, have the same burden which would lie in an action on the contract (see Hapgood v. Shaw, 105 Mass. 276, 279-280), that is, to show that they had so acted as to accrue rights under the contract. They must show that "the transaction failed because of the defendant's fault and not by reason of the plaintiff's own neglect." Cave v. Osborne, 193 Mass. 482, 485. L. R. A. 1916D, 483. The failure of the plaintiffs to do this defeats the action.

The plaintiffs were entitled to a deed only upon payment of the purchase price. Pead v. Trull, 173 Mass. 450, 451-452. Cook v. Doggett, 2 Allen 439, 440. Beck v. Doore, 319 Mass. 707, 710. See Leigh v. Rule, 331 Mass. 664, 668. There was no evidence of the ability of the plaintiffs to perform or of tender by them, or of any repudiation by the defendants prior to action. In the circumstances some

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evidence of demand by the plaintiffs for conveyance and of refusal was necessary to invoke the rule that tender is excused if the other party has shown that he cannot or will not perform. Cook v. Doggett, 2 Allen 439, 440. See Leigh v. Rule, 331 Mass. 664, 668; Vander Realty Co. Inc. v. Gabriel, 334 Mass. 267, 271; Siegel v. Shaw, 337 Mass. 170, 174. There is no basis for an inference that the defendants undertook to inform the plaintiffs when the title was cleared of the assumed defect. Compare Harriman v. Tyndale, 184 Mass. 534, 539.

The defendants' reliance on the statute of frauds after the action was brought, and a declaration filed which could be construed to assert rights under the contract, does not avail the plaintiffs. It does not establish the ability of the plaintiffs to perform seasonably or that, on seasonable demand for deed and a tender, the defendants would not have conveyed.

The declaration and the evidence do not bring the plaintiffs within the cases of King v. Welcome, 5 Gray 41, and Freeman v. Foss, 145 Mass. 361. The plaintiffs' right must be predicated upon nonperformance of the contract. An allegation of nonperformance must be implied in count 2, if it is to be construed as stating any cause, for there is no right to recover the consideration given for a parol undertaking to convey where the defendant is willing to perform. Coughlin v. Knowles, 7 Met. 57. Riley v. Williams, 123 Mass. 506. Twomey v. Crowley, 137 Mass. 184. In the King case the plaintiff declared in quantum meruit for work and labor for the defendant, and the defendant, admitting the performance of the labor and its value, set up a contract to work for a longer period, which was within the statute, and that it was not complied with by the plaintiff. In distinguishing Coughlin v. Knowles, supra, the court said that there the action failed because there was no failure of the agreed upon consideration and no basis for implying the promise necessary for the action, while in the King case it was the defence which failed. Whatever the validity of the distinction (see Corbin, Contracts, Section 332, p. 177; Section 334, p. 183; Keener, Quasi-Contracts, pp. 234-238; Woodward,

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Quasi Contracts, pp. 154-156; 10 Harv. L. Rev. 451; 21 Harv. L. Rev. 544-545; L. R. A. 1916D, 899), the cause of action in this case has failed on the ground stated.

4. The motion for directed verdicts should have been allowed. The other exceptions need not be considered.

Exceptions sustained.

Judgment for the defendants.