I feel obliged to dissent from the foregoing opinion the principal reason being that I cannot agree with the construction given by the majority of the court to clause 5 of the contract upon which the suit is based.
According to the law applicable to suits in equity for the specific performance of contracts for the sale and purchase of real estate, as laid down in decisions, if such a contract provides for the payment of a binder by the vendee to the vendor and then a clause provides that if the vendee defaults on the contract the binder shall be retained by the vendor, the construction of such clause is well settled, in the absence of something in the contract requiring it to be construed differently. That construction is that such a binder will not be treated as liquidated damages and will not interfere with the maintenance of a suit by the vendor against the vendee for specific performance of the contract.
The construction to be given to the second part of clause 5 in the contract governing the rights of the parties in the instant cause is also well settled. Equivalent provisions have been construed in a series of Massachusetts suits by vendees to enforce specific performance by vendors; and I have found no authority to the contrary. Old Colony Trust Co. v. Chauncey,214 Mass. 271; Buckley v. Meer, 251 Mass. 23; Margolis v.Tarutz, 265 Mass. 541. *Page 158
In each of those cases a suit in equity was brought by the vendee to compel specific performance, by the vendor, of a contract for the sale of certain real estate and its conveyance by a deed conveying a good and clear title thereto; and this contract contained the provision, or its equivalent, that "if the vendor shall be unable to give title or to make conveyance as above stipulated, any payment made under this agreement shall be refunded and all other obligations of either party hereunto shall cease and this agreement shall be void without recourse to either party. . . ."
In each of the first two cases above cited it was held that if the vendor's title proved to be defective, the vendee could not maintain a suit in equity against the vendor to compel him to acquire any outstanding interest and convey a perfected title to the vendee. In the former of the two cases the court said at page 273: "This clause means that if it turns out that without fault on the part of the defendants subsequent to the execution of the contract they have a defective title, then, after refunding payments made, all obligations of both parties shall cease." In the second of the three cases above cited the court laid down and applied the same doctrine.
In the third of these cases the contract contained a similar provision and the suit in equity for specific performance was brought by the vendee. But there the court found that the vendor's failure to make conveyance as agreed was not without fault on her part and that "she intentionally neglected and failed to carry out her part of said agreement". It was held that, under these circumstances, the provision as to the termination of all obligations did not relieve her of her obligation to perform; and that the vendee could, at his election, compel her to perform, so far as she could, by conveying the title which she had, with a reasonable deduction from the purchase price by reason of the defect in title.
The second provision in clause 5 of the contract involved in the instant cause is practically the same as the provision *Page 159 involved in each of the cases above cited; and I can see no reason why it should not be construed in the same way, the emphasis being on the words "if the Seller shall be unable to make conveyance as above stipulated". (italics mine) This clearly excludes a case in which the vendor has committed a default in not performing the contract, although he was able to make the stipulated conveyance.
On the other hand, the language of the first part of this clause 5, viz.: "On default by the Buyer, the binder shall be retained by the Seller", (italics mine), is entirely consistent with the language of the second part; and, by well-settled authority, leaves the vendor free to bring a suit in equity against the defaulting vendee, for specific performance of the contract.
It is held, however, in the opinion of this court in the instant cause, that clause 5 should be construed just as if the words "and all obligations shall cease", which are at the end of the whole clause, were also inserted at the end of the first part of the clause, so that that part would read as follows: "On default by the Buyer, the binder shall be retained by the Seller and all obligations shall cease." In my judgment, that construction is not a reasonable one.
In the first place, it is, to my mind, a very unreasonable one, considered simply from the standpoint of the grammatical construction of the language. Secondly, it seems to me that it is unreasonable to so construe a contract. unnecessarily, as to leave the vendee in such a position that he would be free to default on performance of his part of the contract, without any cause or excuse whatever, under the sole penalty of losing his deposit of $100 out of the total purchase price of $8200, while the vendor would be bound, unless, without fault on her part, she could not make the stipulated conveyance. Thirdly, such a construction seems to me still more unreasonable on account of the facts that by the terms of the contract the vendor was to erect, on the land sold and at her own expense. *Page 160 a garage for the use of the vendee and that she did so erect one at an expense of several hundred dollars.
Taking these matters into consideration, I am of the opinion that even after giving the respondent all reasonable benefit resulting from the fact that the contract was drawn by a real estate broker who was acting on behalf of the complainant, the contract should not be so construed as to enable the respondent to avoid specific performance of it, even though, after causing the complainant to incur an expense of several hundred dollars on the premises in accordance with the contract, he had refused to perform it without any just cause or excuse.
After an examination and consideration of all the evidence in this cause, I am convinced that the findings of the trial justice, in his decision, that the complainant had substantially complied with her contract and "that the only reason that respondent failed to go through with the purchase of the property was that his wife had changed her mind", and also all his other findings of fact therein, were supported by the evidence.
As to the matter of procuring a mortgage loan on the property, one of the complainant's agents testified, without contradiction, that he took the matter up with the Peoples Savings Bank and procured there a regular application form, complete except for the respondent's signature; that he handed it to the respondent; and that all the respondent had to do was to sign it. The latter testified that he received this application from this agent; that the latter kept asking him to sign it and send it in; but that he had never done so.
It is my opinion that the appeal should be denied and that the decree of the superior court, in which these findings were incorporated and specific performance by the respondent was ordered, should be affirmed.