Kenerson v. Henry , 101 Mass. 152 ( 1869 )

Wells, J.

The plaintiff seeks to recover for a breach of the second branch of the contract, by a sale and conveyance of the property without first offering it to the plaintiff at the agreed price. Under this clause it was not for the plaintiff to tender the price, and demand a deed. He was entitled to have the offer of a deed made to him, and had no occasion to provide the money until such offer should be made. It is no excuse for the defendant that the plaintiff had no money of his own. With the offer of a conveyance he might be enabled to provide the means of paying the price.

It may be that the defendant was in no worse condition of capability to make a title to the plaintiff after the conveyance to Chase, than while the title was held by his wife. We cannot judge of that. It is enough that the conveyance to Chase imports a sale; that there is no evidence that it was not an actual sale; and as such it is a breach of this agreement.

The defendant contends that this clause imposes no obligation upon him, but is simply intended to enable him to terminate the period of the plaintiff’s election, and release himself from further obligation upon the contract, by making the offer therein permitted; that his omission to make the offer merely leaves him responsible upon the other branch of the contract, provided the plaintiff tenders the price and demands a deed at the expiration of the two years. But we cannot so interpret the writing. The terms, “ it is further agreed that if,” &c., “ be shall first offer it to ” the plaintiff, import an obligation on his part, and not merely a proviso for his benefit. Cartwright v. Gardner, 5 Cush. 273.

It is no defence that he acted in accordance with the “ advice of a counsellor of the courts, learned in the law.”

The evidence of the assessor was properly excluded. The offer was not of his opinion of the value of the property, but “to show the assessed valuation thereof.” Flint v. Flint, 6 Allen, 34. Exceptions overruled.