O'Brien v. Higgins , 110 Mass. 160 ( 1872 )

Morton, J.

By the fair construction of the contract sued on, the plaintiff agreed to give the defendant actual possession of the premises on delivery of the deed. As he did not offer to, and could not do this, he is not entitled to recover.

It may be true that upon the delivery of the deed the term of the tenant at will would have been terminated, and the defendant would have had the right to recover possession. But this is not what the contract contemplated. The stipulation was that the defendant was to have actual possession, and not merely the right of possession. Exceptions overruled.