Church of God in Christ, Inc. v. Congregation Kehillath Jacob

Keville, J.,

dissenting (with whom Goodman, J., joins). The question presented is whether the plaintiff is entitled to specific performance of its agreement to purchase certain real estate from the Congregation, or whether it lost its right to compel specific performance either because of its failure to satisfy a condition attached to an oral extension of the agreement or by the expiration of the oral extension

*427itself.1 The master concluded that the oral extension of the agreement granted on February 26, 1973, was terminated by the Congregation after the period of the extension, for a “reasonable time,” had expired in early July, 1973. The trial judge confirmed the master’s report after one recom-mittal and entered a final decree ordering specific performance of the agreement between the plaintiff and the Congregation. On appeal, Zion Church contends that the conclusion of the master was correct.2

The majority does not reach the question whether the oral extension expired after the passage of a reasonable time. Rather, it relies upon the plaintiff’s alleged failure to satisfy one of three conditions, the payment condition,3 included in the oral extension; and the majority has concluded that, since the plaintiff failed to satisfy that condition, the extension and the purchase and sale agreement were terminated.

Noting that the plaintiff paid $4,441 to the Congregation between February 12 and June 12,1973, and made no payment to the Congregation after June 12,1973, the majority concludes (a) that the plaintiff “has not shown that it made the required installment payments so as to keep the purchase and sale agreement in effect,” and (b) that the plaintiff’s failure to meet the payment condition terminated the oral extension and the agreement to which the extension was attached. This conclusion rests largely upon an inference that the plaintiff was obliged to pay “the $500 *428principal and interest payments due in monthly installments on the balance [$40,000], after payment of the further deposit [$14,000], of the purchase price.” The majority finds support for this inference in the terms of the purchase and sale agreement of October 19, 1972, and the written extension thereto made on December 27, 1972, and presumes to inject these terms into the language of the oral payment condition. In so doing, the majority ignores the indefinite nature of the payment condition of the oral extension and the conduct of the parties following the granting of that extension.

The master found that the oral extension was to “last only so long as payments were made under the Purchase and Sales Agreement.” But neither the agreement nor the written extension defines the plaintiff’s obligation to pay during the oral extension, because the parties were not contemplating the need for a further oral extension when those two documents were executed. Obviously, neither the original agreement nor the written extension states when or in what amounts payments were to be made during the “reasonable time” allowed under the oral extension. When the parties contemplated a specific payment schedule, they defined the time and amount of payments in writing. If they had intended the specific payment schedule asserted by the majority, they could have done so pursuant to another written extension.

I believe the fair inference to be that the parties had abandoned the specific payment schedule of the written extension and entered upon an informal, oral extension designed to enable the plaintiff gradually to pay off the $14,000 balance due on the $35,000 deposit called for in the original agreement. The master made no finding which defined the plaintiff’s payment obligation under the condition. Nor did he find that the plaintiff’s suspension of payments after June 12, .1973, amounted to a failure to satisfy that condition. The absence of such findings, considered with the Congregation’s acceptance of varying sums totaling $4,441 between February 12 and June 12,1973, strongly suggests that no specific payment obligation was intended *429by the parties during the oral extension.4 The plaintiff was obliged to continue payments toward the $14,000 deposit balance due on the $35,000 deposit during the oral extension, but this general obligation is all that clearly appears to have been contemplated.

Even if one were to read into the payment condition the specific requirements assumed by the majority to be present there, those obligations were satisfied by the plaintiff’s payments totaling $4,441. At best, the majority could not possibly infer from the original agreement and the written extension more than that the plaintiff would be obliged to pay $500 a month to compensate for mortgage payments which would have become due, had performance of the agreement occurred according to its original schedule, monthly interest payments on the unpaid balance of $14,000 owed to the Congregation, and unspecified payments to satisfy the $14,000 obligation. Absent a schedule specifying when and in what amounts the $14,000 balance of deposit was to be paid, that alleged requirement was too indefinite to permit the seller summarily to terminate the oral extension because of the buyer’s failure to pay it. See Geo. W. Wilcox, Inc. v. Shell E. Petroleum Prod. Inc. 283 Mass. 383, 388-390 (1933). Compare Lucey v. Hero Intl. Corp. 361 Mass. 569, 573-575 (1972). Contrast Cygan v. Megathlin, 326 Mass. 732, 733-736 (1951). The record demonstrates that the remaining obligations read into the written extension by the majority were satisfied by the payments totaling $4,441 between February 12 and June 12, 1973. Monthly payments of $500 for a six months’ period from February, 1973, through July, 1973, would total $3,000. Interest payments due on the $14,000 deposit balance did not exceed $140 a month under the written extension and would not exceed $840 in that six months’ period. The remaining $600 could have been applied to reduce the $14,000 deposit balance.

*430Since the payment condition did not terminate the oral extension, the Congregation could not justifiably regard the agreement as having terminated prior to the passage of a reasonable time for performance granted by the oral extension.5

The next question is whether the “reasonable time” afforded by the oral extension had expired as of July 27, 1973, when the Congregation notified the plaintiff in writing that their agreement was terminated. As the master found, the oral extension of the purchase and sale agreement gave the plaintiff “additional reasonable time” to perform. If a “reasonable time” for performance had expired and neither party had performed, one party would not be entitled to compel specific performance by the other. See Lowe v. Harwood, 139 Mass. 133, 135-136 (1885); Mansfield v. Wiles, 221 Mass. 75, 81 (1915); Gevalt v. Diwoky, 319 Mass. 715, 716 (1946). The “reasonable time” granted by the oral extension in the present case thus established the time limit beyond which nonperformance by one party would cause the loss of its right to demand specific performance from the other and would enable the other to treat the agreement as rescinded. Corbin, Contracts, § 716, pp. 365-366 (1960). Powers, Inc. v. Wayside, Inc. of Falmouth, 343 Mass. 686, 689-692 (1962). Richardson v. Parker, 353 Mass. 764 (1968).

Neither the judge nor this court is bound by the master’s conclusion that the plaintiff’s rights under its agreement with the Congregation, as extended, were terminated in early July, 1973, before the latter executed a purchase and sale agreement with Zion Church. We take the master’s subsidiary findings with proper inferences to be drawn from them and reach our own conclusions. O’Brien v. Dwight, 363 Mass. 256, 281 (1973). Peters v. Wallach, 366 Mass. 622, 626 (1975).

*431“What is a reasonable time depends on all the circumstances of the case.” Powers, Inc. v. Wayside, Inc. of Fal-mouth, supra, at 691. In the present case, the parties were in frequent and close communication with each other with respect to the performance of their agreement. While time was made of the essence in the original agreement, it was not of the essence in the written extension in light of the Congregation’s acceptance of a payment due on January 26, 1973, on January 31,1973. Barnard v. Lee, 97 Mass. 92, 95 (1867). Porter v. Harrington, 262 Mass. 203, 207-208 (1928). Nor was time made of the essence under the oral extension, which, by its own allowance of a reasonable time in which to perform, demonstrated that no specific date for performance had been established.6

The oral extension and the Congregation’s acceptance of $4,441 between February and June, 1973, in the absence of a specific payment schedule, indicate that the performance obligation of the plaintiff and the understanding between the parties were much more flexible and informal than they had been under the original agreement and the written extension.

The fact that the plaintiff had made payments of more than $4,000 during the oral extension indicates that the reasonable time contemplated by the parties was a longer period than it would be if no performance were being rendered by the plaintiff. Compare Restatement: Contracts, § 276(c) p. 407 (1932). At no time prior to July did the Congregation intimate that the plaintiff was not performing according to its expectations. When, in early July, it did suggest that the plaintiff develop a “new proposal,” it apparently did so in order to use the presence of a prospective buyer to accelerate the plaintiff’s performance. The record does not disclose that the extension of time through July, 1973, caused harm to the Congregation. Contrast Gevalt v. *432Diwoky, supra. Since the determination of a reasonable time should also take into account what would be equitable in the circumstances, the plaintiff’s continuing payments for maintenance, repairs and improvements during the oral extension7 should also be considered. Compare Barnard v. Lee, supra, at 95.

In light of the conduct of the parties and the language employed in the oral extension under which they were acting, I conclude that a “reasonable time” had not expired as of July 27, 1973. In my view, the oral extension neither expired by the passage of a “reasonable time” nor by the failure of the payment condition attached to it. If the Congregation had wished to accelerate performance by the buyer, it could have assigned a reasonable time8 for the completion of the agreement, thereby again making time of the essence for the performance by the plaintiff (Limpus v. Armstrong, ante, 19, 22 [1975]) and at the assigned time been itself prepared to tender performance to the plaintiff. The Congregation could not, however, simply notify the plaintiff that their agreement was cancelled. Id. at 22, 23. Mansfield v. Wiles, 221 Mass, at 82-83. The Congregation’s •unwillingness to perform, manifested by its notice to the plaintiff that their agreement was terminated, relieved the plaintiff of an obligation to tender payments due to’ the Congregation as a prerequisite to specific enforcement of their agreement. Limpus v. Armstrong, supra, at 22, and cases cited.

Accordingly, the final decree of the Superior Court ordering specific performance of the plaintiff’s purchase and sale agreement with the Congregation should be affirmed.

The failure to satisfy a condition attached to the oral extension, or the expiration of the oral extension itself, would give the Congregation the concomitant right to treat its agreement with the plaintiff as rescinded.

Following its appeal, the Congregation has assumed the role of stakeholder and has taken no position as to the rights of the competing purchasers.

The master found that the oral extension was granted “on the express understanding that the extension would last only so long as payments were made under the Purchase and Sales Agreement, or until there was a change in circumstances, or until pressure was placed upon President Lampert by the membership of the Congregation.”

The master concluded that the Congregation “further extended the said [purchase and sale] agreement orally and by accepting payments from the [plaintiff]” (emphasis supplied).

Indeed there has been no suggestion by any of the parties that the payment condition was not complied with or is otherwise material. The master did not find and the majority does not contend that either of the other two conditions occurred. Hodsdon v. Guardian Life Ins. Co. 97 Mass. 144, 147 (1867).

The master found, “After the oral extension of the Purchase and Sales Agreement was made on February 26, 1973, and prior to July, 1973, no date certain was established for completion of Petitioner’s performance by the Congregation.”

By July 27, the plaintiff, in addition to having paid more than $25,000 toward the total deposit requirement of $35,000, had maintained the property from the date of the original agreement, including the replacement of fifty-six broken windows, and had provided for the fabrication and installation of protective grillwork at a cost of $1,600.

A specific date for performance which is reasonable in time from the date of demand for performance.