Wheatland v. Silsbee , 159 Mass. 177 ( 1893 )

Morton, J.

We think it does not matter whether the agreement of December 20,1888, be construed as the defendants contend it should be, — as giving to the plaintiff only an option to purchase, — or as constituting, as the plaintiff contends, a joint venture on the part of the defendants’ testator and the plaintiff. If it was an option, then the plaintiff, according to the allegations contained in the bill as originally filed and as amended, exercised during the testator’s life the right to purchase which the agreement gave him. The bill alleges that, several times after the agreement was executed and delivered to the' plaintiff by Pickman, the plaintiff told Pickman that he had the money to pay for his half, and that he wanted to do so and take a deed of it, but that Pickman declined to take the money and deliver the deed, saying that he did not wish the money, and preferred to let it lie. The amendment alleges that the plaintiff was abundantly able at all times, as Pickman well knew, to pay his share of the purchase price, with interest and charges; that he relied upon Pickman’s statement that payment was not desired; and that his failure to make payment was due to such statement and refusal.

The purport of these allegations is, that the plaintiff was able to take and pay for the deed, as Pickman knew, and was desirous and offered to do so, but that the defendants’ testator declined to take the money and deliver the deed; or, in other words, that the plaintiff availed himself of the right to purchase, and offered and was able to do what the agreement required him to do, but the defendants’ testator declined to receive the money and deliver the deed. Upon these facts it is clear that Pickman was in default at the time of his death. The plaintiff was not obliged to make an actual tender of the money so long as he was able, ready, and willing to take a deed, and was desirous to do so, and Pickman had notice thereof. Linton v. Allen, 154 Mass. 432, 439. Brown v. Davis, 138 Mass. 458. Cook v. Doggett, 2 Allen, 439. The plaintiff’s yielding for the time being, at each effort to get a deed, to Pickman’s desire not to take the money and to let it lie, did not affect the plaintiff’s rights. The delay was at Pickman’s request, and without consideration, and there,was nothing to prevent the plaintiff from bringing suit at any time when he chose to do so.

Decree affirmed.