Fred T. Ley & Co. v. Sagalyn
| Decision Date | 04 March 1939 |
| Citation | 302 Mass. 488,19 N.E.2d 687 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | FRED T. LEY & CO., INC. v. RAPHAEL SAGALYN & others. |
December 6, 1937.
Present: FIELD, C.
J., LUMMUS, QUA & COX, JJ.
Contract Construction, Of guaranty, Performance and breach. Tax Betterment. Equity Jurisdiction, Nominal damages. Damages Nominal.
An agreement under seal with the grantor of land in a city that the obligor individually would "guarantee the performance of an agreement," made by him as trustee-grantee in the deed, "to pay" a betterment assessment laid both upon the land described in the deed and upon an adjoining parcel formerly owned by the grantor, and to "pay said assessment" upon demand by the grantor if, upon its nonpayment, the city should advertise the property for sale for collection, so as to relieve the adjoining property
"from the lien of said assessment," was not an agreement of mere indemnity against loss resulting from the assessment but required the obligor to pay it, and this requirement was not qualified by the succeeding independent statement of obligation arising in the event of advertisement for sale.
The real estate lien was the only means of collecting a betterment assessment made in 1918.
A suit in equity to establish an obligation under an agreement under seal, broken by the defendant, to pay a betterment assessment and to reach and apply equitable assets to its payment was dismissed where it appeared that, when the agreement was made, the lien of the assessment had expired so that no substantial damage resulted from the breach of the agreement.
BILL IN EQUITY, filed in the Superior Court on November 1, 1933. The case was heard by Williams, J., and in this court was submitted on briefs.
N. M. Harvey & J.
H. Mulcare, for the defendants.
R. P. Dunning, for the plaintiff.
On June 21, 1920, the plaintiff, Fred T. Ley & Co., Inc. conveyed by warranty deed to three trustees under a written declaration of trust of F. A. Bassette Company, a voluntary association having shares, a parcel of land at the southwesterly corner of Dwight and
Hillman streets in Springfield, subject to a mortgage and to the annual taxes of the year 1920. In fact, though no mention of it was made in the deed, the parcel was subject also to an unpaid betterment assessment levied by the city of Springfield on December 23, 1918, as a result of the widening of Dwight Street in 1916. In the deed the grantor covenanted with the grantees and their heirs, successors and assigns, among the other usual covenants, that the granted premises "are free from all encumbrances, except as aforesaid." To protect the purchasers further from that betterment assessment, the grantor gave to the trustees "and their heirs, successors, executors, administrators and assigns" a separate covenant under seal to hold the trustees harmless from that betterment assessment.
On October 6, 1922, the plaintiff Fred T. Ley & Co., Inc. conveyed by warranty deed to Herman Adaskin, Raphael Sagalyn and Samuel Wiener, trustees of the Walnut Realty Trust under a recorded declaration of trust, a parcel on Dwight Street south of and adjoining the parcel conveyed in 1920, described in the preceding paragraph. The deed of October 6, 1922, recited that it was made subject to the same betterment assessment, amounting to $21,706.50 and interest at the rate of six per cent per annum from March 1, 1922, covering the land conveyed and that conveyed in 1920 to the trustees of F. A. Bassette Company, "which the grantees assume and agree to pay." The assessment covered both parcels as a unit. As the grantees did not sign or seal the deed, the words quoted created only a simple contract when the grantees accepted the deed. Locke v. Homer, 131 Mass. 93 , 102, 107. Goodenough v. Labrie, 206 Mass. 599 , 601. Flynn v. Kenrick, 285 Mass. 446 , 448, 449. But in addition, on the same day, the grantees, signing as individuals without any description of themselves as trustees and without other qualification, entered into an agreement under seal with the plaintiff, reciting that "we the undersigned do hereby covenant and agree with said Fred T. Ley & Co., Inc. that we will guarantee the performance of said agreement by said trustees [i.e., themselves as trustees] to pay said assessment, and if said assessment shall not be paid when demanded by the city of Springfield and said city shall advertise said property for sale to collect said assessment, we will upon demand by said Company pay said assessment with interest and costs so as to fully relieve the property sold by said Company to the trustees of the F. A. Bassette Company from the lien of said assessment." This was a joint covenant. Lovell v. Commonwealth Thread Co. Inc. 272 Mass. 138 , 141. Childs v. Childs, 293 Mass. 67 , 71.
In 1926, the trustees and all the shareholders of F. A. Bassette Company conveyed to a corporation known as Bassette Company Realty Corporation the parcel of land conveyed to the trustees of 1920, described in the first paragraph of this opinion, The trustees "as trustees," for themselves and their successors, gave the usual covenants of a warranty deed, including a covenant that the granted premises "are free from all encumbrances except as aforesaid." In 1932 the trustees and all the shareholders of F. A. Bassette Company conveyed all the assets, tangible and intangible, including contracts and choses in action, to a corporation known as The F. A. Bassette Company. On the same day the trustees, both personally and as trustees, and The F. A. Bassette Company (the corporation) assigned to Bassette Company Realty Corporation all their right in and to a claim against Fred T. Ley & Co., Inc., "for damages and/or indemnification" by reason of the betterment assessment,
On July 31, 1933, the assessment had been paid down to $10,000, which with accumulated interest remained due. At that time E. J. Pinney, Incorporated, owned the southerly parcel by virtue of a deed from Adaskin and others, trustees of the Walnut Realty Trust. The city of Springfield made demand for payment upon both Bassette Company Realty Corporation and E. J. Pinney, Incorporated. As a result, on July 31, 1933, Bassette Company Realty Corporation paid the city $5,500 plus accumulated interest of $632.50, a total of $6,132.50, and E. J. Pinney, Incorporated, discharged the rest of the assessment with interest. On August 4, 1933, Bassette Company Realty Corporation demanded repayment of $6,132.50 from the plaintiff. The plaintiff expressly admits its liability to Bassette Company Realty Corporation in the amount just stated. On August 7, 1933, the plaintiff demanded payment of the same amount from Harry V. Pilnick, administrator of the estate of Samuel Wiener, and from Raphael Sagalyn and Herman Adaskin as individuals.
On November 1, 1933, the plaintiff, Fred T. Ley & Co., Inc. brought this bill against Pilnick as administrator, and Adaskin and Sagalyn as individuals, for the purposes of enforcing their obligation to the plaintiff to repay the sum of $6,132.50 paid in satisfaction of the assessment, and of applying certain property in payment of their debt in accordance with G.L. (Ter. Ed.) c. 214, Section 3 (7), (8). The bill was amended on May 29, 1934, by striking out Bassette Company Realty Corporation as an additional plaintiff, and by making it a defendant. The defendants Adaskin, Sagalyn and Pilnick as administrator, appealed from the decree allowing the amendment of the bill. But they do not argue that appeal in their brief, and therefore waive it. Boston v. Dolan, 298 Mass. 346 , 355. Pending the suit, the defendant Adaskin died on October 21, 1935, and Edward Adaskin and Sadie W. Adaskin, the executors of his will, became defendants in his stead.
The final decree ordered the defendant Raphael Sagalyn as an individual, and also as trustee, the defendant Harry V. Pilnick as administrator of the estate of Samuel Wiener, and the defendants Edward Adaskin and Sadie W. Adaskin as executors of the will of Herman Adaskin, jointly and severally to pay to the defendant Bassette Company Realty Corporation, in exoneration of the plaintiff from its obligation to that corporation, the sum of $6,132.50 with interest from the day of demand, August 7, 1933, and to pay costs to the plaintiff. Other provisions of the decree are immaterial to the questions argued. The defendants do not contend that there was error in respect to the joinder of defendants or the capacities in which liability was imposed on them by the final decree; and the plaintiff has not appealed. See Tyler v. Brigham, 143 Mass. 410, 413. In equity a single suit may be maintained against a surviving joint contractor and the executor or administrator of a deceased one. Von Arnim v. American Tube Works, 188 Mass. 515 , 520, 521. Compare the rule at law, New Haven & Northampton Co. v. Hayden, 119 Mass. 361; Armstrong Knitting Mills v. Oakes, 249 Mass. 397 . The three defendants who were ordered to pay appealed from the final decree.
A technical breach of covenant, giving the...
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