This case is governed by McDonough v. Lowell, ante, 214. The final decree is reversed. A new final decree is to be entered declaring that each of the plaintiffs, while he remains employed by the city in a position subject to a remuneration plan referred to in St. 1951, c. 245, Section 1, and while the city remains subject to that section, is entitled to receive the salary payable to a civil engineer or inspector of his grade employed by the State department of public works.
This case began as a libel for divorce by the wife against the husband entered in September, 1952. The divorce was granted and the wife awarded alimony and custody of two minor daughters. Subsequently there have been many petitions for contempt and disputes over custody. The case was here in 1963 on an appeal of the husband. 345 Mass. 772 . It is now before us on the husband's appeal from a decree of contempt dated January 1, 1965. This decree was entered by a judge who, the docket shows, made an order disqualifying himself on October 19, 1961. We are not sure from the confused record whether other matters are intended to be the subject of present appeal. We are of opinion that this decree should be reversed, and that all pending matters should be heard anew by another judge from another county to be assigned by the chief judge of probate courts. Such hearing will include the petition for contempt and any questions of visitation.
The judge made a finding for the defendant seller in an action of contract brought by the plaintiff buyers to recover $500 deposited by the buyers under a purchase and sale agreement, made on May 26, 1962, which fixed June 28, 1962, as the date for delivery of the deed. The agreement provided for the refund of the deposit if (1) the buyers were unable to obtain a mortgage of at least $9,500, or (2) the premises, except for ordinary
wear and tear, were not in the same condition on June 28, 1962, as they were on May 26, 1962, unless the seller by written notice elected to extend the time to restore the premises. The judge found, in part, that after the agreement the basement apartment had been damaged and partitions had been removed, and that by June 28, 1962, some repairs had been made, and some, but not all, partitions had been restored. The seller refused, upon demand, to refund the deposit. The Appellate Division was right in vacating the finding and ordering a finding for the buyers. Although the seller testified that he was ready and willing to convey, there was no showing that he manifested his readiness by a tender of the deed or by a notice under the agreement for an extension of time to complete repairs. Since the seller himself had not offered and was not excused from offering performance, he could not put the buyers in default. Leigh v. Rule, 331 Mass. 664 , 668.
Order of Appellate Division affirmed.
[Note 1] Rita Dore.