CHARLES L. HORGAN vs. GORDON H. OGILVIE, executor, & another.

CUTTER, J. Horgan by petition in equity in the Probate Court seeks against Ogilvie, as executor of the will of Howard M. Lindley, and Mrs. Lindley specific performance of an alleged agreement, made by Lindley and Mrs. Lindley, to convey to him real estate (locus) in Ayer. The probate judge entered a decree dismissing the petition. Horgan appealed. The evidence is reported. The facts, except as otherwise indicated, are based upon the judge's report of material facts.

For over twenty-five years before 1967 Horgan had been a friend of Lindley. The evidence shows he had

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worked for Lindley at Fort Devens at one time. In 1967 Horgan began supplying Lindley with fuel oil. Horgan, according to the testimony, then had no storage facilities in Ayer and was hauling oil from Lowell. Lindley talked to Horgan about selling the locus to him for $1,500. On the basis of a memorandum prepared by Lindley, Mr. James L. Haley, an attorney (after talking with both Lindley and Horgan), prepared a lease option agreement (a copy of which was attached to the petition). Although the probate judge points out that this agreement, dated October 31, 1967 (the 1967 agreement), was never introduced in evidence, the reported evidence shows no dispute concerning its existence or contents. We treat it as before us. The 1967 agreement provided for a lease of the locus to Horgan for two years for $200 a year, with permission to him to install oil tanks above or below ground level and to erect structures. It also contained the option set out in the margin. [Note 1] The locus was owned by the Lindleys as tenants by the entirety, and at the time of trial, Mrs. Lindley was sole owner. Lindley had died on May 24, 1968.

Horgan and Lindley had an agreement that the rent would be paid in fuel oil to be delivered to Lindley's house. This was done up to and after Lindley's death until and beyond October 31, 1969. It was not shown that Mrs. Lindley knew of this arrangement while Lindley was alive.

In January, 1968, Horgan installed an oil tank on the locus. Later he moved three more oil tanks to the

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locus, but it is not clear whether these three tanks were moved prior to Lindley's death.

About September 15, 1969, Horgan told Mrs. Lindley that he intended to purchase the locus. He said nothing about a date for carrying out the purchase nor anything about rent payment. The judge found that Mrs. Lindley did not understand that Horgan was giving her a thirty day notice of his intention to exercise an option to purchase the locus. We are of opinion that she reasonably should have understood this and we regard her actual understanding as immaterial.

On October 30, 1969, Horgan went to the office of the Concord Cooperative Bank and talked with Ogilvie, president of the bank. Horgan had with him a check drawn by the Union Oil Company, payable to Horgan for $1,200, and informed Ogilvie that he desired to exercise the option to purchase the locus and was prepared to complete the transaction. Ogilvie called in Miss Eleanor Daly, the bank's attorney and also attorney for Lindley's estate. Horgan was informed at the time of the conference that she was so acting.

Horgan demanded that the estate perform the option agreement. Ogilvie replied that Horgan had not complied with the requirement as to notice. Horgan then went to see Mrs. Lindley. He asked her if she would sign a paper saying that he had talked with her in the preceding September. She said she would. Horgan then had his wife write up a statement which Mrs. Lindley signed. On this occasion Horgan gave Mrs. Lindley his check for $15.70 saying he had calculated the cost of the oil which he had supplied and that it had fallen short of the $400 rent by the amount of $15.70 and he wanted to pay that sum. He asked if she wanted the check cashed and, when she said she did, Horgan gave her $15.70 in cash. She indorsed the check. The judge found that Mrs. Lindley on October 30, 1969, "had no adequate understanding of the" 1967 agreement. "[S]he knew only that her late husband had

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made some arrangement to sell the locus . . . to . . . [Horgan]."

On October 31, 1967, the locus was subject to a mortgage dated February 15, 1966, in the face amount of $19,700 running to the Concord Cooperative Bank. There was also another mortgage of the locus to the same bank recorded on May 9, 1969. There was no evidence offered as to the face amount of this mortgage. A balance of some amount was due to the bank on October 30, 1969. The evidence shows that the locus covered about three-quarters of an acre and that the total tract subject to the mortgages was twenty-four acres. The judge found that the fair value of the locus on October 31, 1967, was $5,000. No offer was made by Horgan, either before or at the hearing, to accept a deed from Mrs. Lindley subject to the existing mortgages.

1. The oral notice, given on September 15, 1969, as acknowledged on October 30, 1969, in a writing signed by Mrs. Lindley, of Horgan's intention to exercise the option was sufficient and seasonable. The reasonable interpretation of the option (see fn. 1, supra), was that the "one month's notice" was to be given prior to the first day of any month and was to expire at the end of that month.

2. The option, unambiguous (cf. Wright v. Commonwealth, 351 Mass. 666, 672-673) in this respect, in terms required Lindley to convey free of all encumbrances, including the particular mortgage (referred to in the option) to the Concord Cooperative Bank. It was not established that it was impossible for Mrs. Lindley to obtain a partial release of the bank mortgages, of which Ogilvie, the executor of her husband's will, was president, to enable her to make the conveyance to Horgan. She is bound by the 1967 agreement which she signed and which the evidence shows she knew about from the beginning, at least in a general way. The Lindleys obviously knew that Horgan would incur expense and change his position in reliance on the option. Now, at

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least, the bank through Ogilvie is informed of the equities of this situation. We perceive no hardship or impossibility which should bring the case within the principle mentioned in Freedman v. Walsh, 331 Mass. 401, 403.

3. It is immaterial that the locus was worth $5,000 on October 31, 1967, and was to be conveyed for $1,500. Horgan had effected improvements during the two year period after the 1967 agreement. In any event, the reported testimony, as we read it, shows that Lindley was trying to help his old friend Horgan establish himself, and the transaction was wholly a friendly one. There is no indication in the evidence that Horgan overreached Lindley and his wife. The fact that the bank's attorney was also acting for Mrs. Lindley and Lindley's estate warranted Horgan in going to Ogilvie to obtain conveyance late in October. Any failure of Horgan to comply strictly with the terms of the option should not bar equitable relief in the circumstances in view of his reasonable efforts to comply, and where there was substantial indication that tender, no matter how made, would be futile. See Leigh v. Rule, 331 Mass. 664, 668-669; Mayer v. Boston Metropolitan Airport, Inc. 355 Mass. 344, 353-354. Cf. Hurd v. Cormier, 358 Mass. 736, 739-740.

4. On the subsidiary facts found by the judge, read in the light of the reported testimony, we conclude specific performance should be ordered. We perceive "no substantial or adequate equitable basis for discretionary denial of specific performance." See Raynor v. Russell, 353 Mass. 366, 367; Allen v. Rakes, 359 Mass. 1, 5-6.

5. The decree is reversed. A new decree is to be entered ordering Mrs. Lindley, upon payment of the balance of the purchase price, to convey the locus to Horgan free of all encumbrances. Horgan is to have costs of appeal.

So ordered.