Home E. M. LOEWS, INC. vs. TOBE C. DEUTSCHMANN & another.

344 Mass. 765

July 2, 1962

Decree affirmed with costs of this appeal. This suit for specific performance was considered in 337 Mass. 42 on an appeal from a final decree following interlocutory decrees taking the bill for confessed. There has been a trial on the merits. The pleadings are not substantially changed. The judge made a statutory report of material facts. The plaintiff had substantial assets. Neither the plaintiff nor its nominee had obtained a license to operate an outdoor theatre on the premises. Under the contract this failure excused the plaintiff and its nominee from taking title. The plaintiff had the "exclusive option," nevertheless, to purchase the premises notwithstanding such failure. The option provision, properly construed, required the plaintiff to give its own mortgage note with prescribed terms for $160,000. The plaintiff was unwilling to give its own note. The alleged tender of a note with different terms by its corporate nominee, organized to operate a theatre but having no license to do so and having assets of only $1,000, was insufficient to put the defendant in default. For this reason, and for others not discussed, the bill was rightly dismissed.