Johnson v. Larson , 157 Mass. 315 ( 1892 )

Field, C. J.

We find it unnecessary to determine whether the memorandum in connection with the allegations of the bill shows that the land was sufficiently described to satisfy the statute of frauds, or whether the note which the plaintiff was to give must be indorsed to the satisfaction of the defendant Larson, or only indorsed by some person who the court may find ought to be satisfactory to him. The memorandum contains a specific statement of what the plaintiff must do if he accepts the deed; but the statement of the promise of Larson, of whom Henry S. Bacon, who signs the memorandum, is alleged to be the agent, is as follows: “ If the deed is accepted, the fifty dollars is to be accounted as a part of said three hundred dollars, said deed to be presented on or before January 1st, 1892, or the fifty dollars is to be refunded, interest to be paid by grantor to December 1st, 1891, grantee to have benefit of income from December 1, 1891.” This interest, we suppose, is the interest on the two mortgages, which the plaintiff is to assume and pay if he accepts the deed.

We are inclined to the opinion that the true construction of the memorandum is that Bacon, as agent of Larson, did not absolutely agree that Larson should' give a deed of the land, but that the agreement is in the alternative; viz. that Larson should tender a deed of the land on or before January 1, 1892, or refund the fifty dollars which the plaintiff had deposited as forfeit money in case he failed to accept the deed, if tendered.

The decree dismissing the bill must be affirmed.

>So ordered.