Abeloff v. Peacard

• Decision Date: 30 June 1930
• Citation: 171 N.E. 14,272 Mass. 56
• Parties: ABELOFF v. PEACARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

272 Mass. 56

171 N.E. 14

ABELOFF

v.PEACARD.

Supreme Judicial Court of Massachusetts, Suffolk.

June 30, 1930.

Appeal from Superior Court, Suffolk County; Gray, Judge.

Suit by Philip N. Abeloff, trustee, against Morris A. Peacard. Decree for complainant, and defendant appeals.

Affirmed.

Max Kabatznick, of Boston, for appellant.

Maurice Jacobs, of Boston, for appellee.

FIELD, J.

This is a bill in equity brought in the Superior Court by a mortgagee of real estate to restrain the defendant from removing from the dwelling houses on the mortgaged premises certain ranges installed therein by the defendant and to declare invalid a notice of conditional sale of such ranges recorded by the defendant in the Suffolk registry of deeds. The defendant admitted by his answer, among other things, that ‘on the twentieth day of December, 1928, he caused to be recorded in the Suffolk Registry of Deeds * * * a notice of conditional sale in which he claimed title to certain ranges, etc., installed in the buildings located upon the premises. * * *’ A decree was entered stating that the case ‘came on to be heard after trial on the merits and the filing of a memorandum by the Court,’ and that it was ‘ordered, adjudged and decreed’ that ‘the defendant has no title’ to the ranges, that the ‘notice is not in conformity with law and is void’ and that ‘the said notice be and the same is hereby ordered cancelled and stricken from the records. * * *’ The defendant appealed.

The record is informal and defective. The so-called ‘memorandum’ (see Commonwealth v. O'Neil, 233 Mass. 535, 543, 124 N. E. 482), referred to in the decree as filed, is not made a part of the record. Obviously, the ‘Findings of Fact’ printed with the defendant's brief are not entitled to be considered. The record does not incorporate the evidence, either testimony or exhibits, and gives no indication that the evidence is reported to this court in the manner authorized by G. L. c. 214, § 24, and Equity Rule 29 (1926). However, a paper entitled ‘commissioner's report,’ attested by an assistant clerk of the Superior Court as a ‘copy’ of ‘a true record of the testimony reported’ by an ‘official court stenographer,’ was filed here. This is not before us properly.

The record discloses no error in the decree. The decree is within the scope of the bill of complaint and consistent with the allegations thereof admitted by the defendant's answer. The finding of every other fact essential to the entry of the decree is implied from such entry, in the absence of a report of the evidence. See Leary v. Liberty Trust Co. (Mass.) 171 N. E. 828.

If, however, we assume in favor of the defendant that the testimony set out in the ‘commissioner's report’ and the exhibits referred to therein are before us, the same result follows. This evidence tended to show the following facts: The plaintiff, as trustee, held construction mortgages of real estate in Boston on which dwelling houses were being built by the mortgagor, the Bay State Realty & Construction Company. In November, 1928, the defendant sold upon credit and delivered to the mortgagor six ranges which were installed in a six-family house on the premises. About the time that payment for these ranges became due, a representative of the mortgagor asked the defendant to furnish three more ranges for another house. The defendant and the representative of the mortgagor agreed orally that the defendant would furnish three additional ranges and that the mortgagor would execute a conditional sale agreement in writing covering the nine ranges. On December 14, 1928, shortly after the oral agreement was made, the defendant delivered three ranges on the premises. There was no evidence as to the way in which the ranges were attached to the buildings. No written agreement for conditional sale was executed. On December 20, 1928, the defendant caused to be recorded in the Suffolk registry of deeds a notice that he had sold nine ranges on conditional bill of sale for $1,125, to be paid ‘within thirty days of delivery,’ and had delivered them on the premises in question on December 14, 1928, and that the purchase price remained unpaid. The plaintiff testified that from time to time he examined the records in the registry of deeds, that he saw the record of the notice a few days after it was made, and that thereafter he made...