Home BERYL I. BREITSTEIN & another vs. MERRILL A. BLUM & others.

356 Mass. 730

December 2, 1969

In this bill in equity the plaintiffs as buyers seek specific performance, by certain defendants as sellers, of a purchase and sale agreement of a parcel of real estate, or in lieu thereof the plaintiffs seek damages. They also seek to have declared void certain lease options entered into between the sellers and another defendant. The plaintiffs appealed from an interlocutory decree confirming a master's report and from a final decree dismissing the bill. The sellers appealed from that portion of the interlocutory decree which denied their motions to strike certain paragraphs from the master's report. They also appealed from a part of the final decree which directed them to return the plaintiffs' deposit with interest. The deed was to be delivered subject to two mortgages. A rider was annexed to the agreement which contained a number of provisions. One of these required the plaintiffs to use their "best efforts to obtain from the [first] mortgagee an approval of the . . . transfer." The difficulty between the parties appears to stem from the inability of the plaintiffs to get this approval without the payment of $5,000 to the mortgagee, which the mortgagee demanded and which the plaintiffs refused to pay. The conclusions of the master that the plaintiffs were not entitled to specific performance and that the sellers "suffered no damages" were warranted by his subsidiary findings. The master was likewise warranted in concluding that the plaintiffs were entitled to a return of the deposit plus interest. See Young v. Young, 352 Mass. 773 . The interlocutory decree is affirmed. The final decree is to be modified by striking therefrom the provision dismissing the bill. The relief granted by the final decree is to stand. As so modified, the final decree is affirmed.

So ordered.