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Porter v. Harrington

Citation. 262 Mass. 203 (Supreme Judicial Court of Massachusetts, 1928)
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Brief Fact Summary.

Plaintiff brought a suit in equity seeking to compel the Defendants to specifically perform an agreement to convey land to him.  The contract between the parties involved two parcels of land, for a specified sum, and one parcel had already been conveyed.

Synopsis of Rule of Law.

When a party without obligation has accepted overdue payments not made in accordance with the strict terms of the contract, an order of business has been established inconsistent with rigid insistence upon a clause of the contract which in effect is a forfeiture of the enforcement of a penalty.


The contract required the Plaintiff to make installment payments, but he did so without regularity.  When offering to make a payment, Plaintiff was notified that Defendants chose to exercise their option under the contract to close the account.  Plaintiff was able and offered to pay the full amount due, but Defendants declined and claimed the right to keep the money paid in by the Plaintiff as liquidated damages.

The contract stated that “prompt performance and time are the nature and essence of this contract,” and permitted the Defendants to declare the agreement null and void if the Plaintiff failed to make a payment for 31 days.  The contract also provided that no waiver of a breach would constitute a waiver of any subsequent breach.   

The lower judge entered a decree in favor of the Plaintiff.


Were the Defendant barred from voiding the contract?


Yes.  Decree affirmed with costs.

The Defendants had accepted late and sporadic payments in the past, and did not notify the Plaintiff of their intention of holding the Plaintiff to more strict compliance in the future. 






·         The Defendants, by their course of conduct covering almost three years, accepted from the Plaintiff payments long overdue.

·         The Defendants’ course of conduct modified the terms of the contract, so they were no longer entitled to hold Plaintiff in default for late payments.  

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