Opinion
February 29, 1968.
The case was submitted on a brief.
Saul Andelman for the defendants.
Arnold Yenof and his brother Richard owned premises on Cross Street, Somerville (the locus). Arnold negotiated with Pino for the sale of the locus to him. On March 3, 1966, a memorandum, signed by Pino and by both Yenofs acknowledged a deposit of $4,000, referred to the locus, mentioned a total price of $10,000, and stated that the $6,000 balance would be "due upon completion and signing of passing papers." The $4,000 was deposited in the Yenofs' business account. Pino, with the Yenofs' knowledge, made extensive improvements of the locus. When a prospective mortgagee's attorney discovered two minor title defects, an attorney was engaged to clear the title for the Yenofs by Land Court proceedings. At some time the Yenofs decided to separate their businesses. Richard, who planned to retain a business conducted at the locus, told Pino the deal was off because it was going to cost too much to clear the title. Pino's attorney represented, at the trial of this bill by Pino for specific performance, that " . . . [his] client would desire to take the property . . . irrespective of . . . [the] two minor matters." Arnold Yenof is prepared to join in a conveyance. Upon the conflicting reported evidence, largely oral, the trial judge was justified in ordering specific performance. He could reasonably conclude that the Statute of Frauds (G.L.c. 259, § 1, Fourth) had been satisfied, that the brief memorandum itself was sufficient (see Cousbelis v. Alexander, 315 Mass. 729, 730-732; Hook Brown Co. v. Farnsworth Press, Inc. 348 Mass. 306, 310; see also Tzitzon Realty Co. Inc. v. Mustonen, 352 Mass. 648), that no further written purchase agreement was contemplated, that the large deposit and substantial work done by Pino in reliance on the memorandum prevented the Yenofs from relying on the statute (see Fisher v. MacDonald, 332 Mass. 727, 729; Gordon v. Anderson, 348 Mass. 787), and that Pino was able and willing to complete performance.
Final decree affirmed with costs of appeal to be paid by Richard Yenof.