Barringer v. Northridge

• Decision Date: 04 January 1927
• Parties: BARRINGER v. NORTHRIDGE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

258 Mass. 118

154 N.E. 575

BARRINGER

v.NORTHRIDGE et al.

Supreme Judicial Court of Massachusetts, Worcester.

Jan. 4, 1927.

Appeal from Superior Court, Worcester County; F. T. Hammond, Judge.

Suit by Edwin C. Barringer against George A. Northridge and another. From decree for plaintiff in insufficient amount, he appeals. Decree modified, and, as modified, affirmed.

E. C. Barringer, of Boston, pro se.

WAIT, J.

This is a bill in equity for an accounting. It is before us upon an appeal by the plaintiff from a decree of the superior court which awarded him a sum smaller than, as he contends, is justly due.

The master's report shows the following facts: The defendant, in 1920, purchased a tract of about sixty-eight acres of land in Avon and Stoughton, which he laid out with streets and cut into six hundred and forty-five house lots which he proceeded to sell upon contracts which required that he should convey a clear title to the purchasers of the lots when payments under the contract reached a certain sum. He gave a purchase money mortgage to his vendor, and, later, made an absolute conveyance of the equity in the whole tract to a Mrs. Pierce who stood ready to reconvey on receiving payment of five hundred dollars. In February of 1922, he had sold one hundred and seventy-seven of the lots, and was bound to make conveyances, but was unable to give a clear title because the first mortgagee would not make partial releases, and because he had parted with the record title. To meet his difficulties he arranged with the plaintiff, an attorney at law who had been his counsel, for a loan of $1,050, and entered into a written contract which bears date February 1, 1922. He used $1,000 in clearing off the incumbrances and procured a warranty deed of the tract from Mrs. Pierce to the plaintiff and a discharge of the first mortgage. Thereafter the plaintiff held title to the tract free of mortgage incumbrances and absolute upon the records. By the written agreement, the defendant bound himself to repay the $1,050, with interest, in monthly payments of $100, which were to begin on April 1, 1922, and to continue until the payments equalled $1,050; to continue his best efforts to sell the remaining four hundred and sixty-eight lots until all were sold at a price not less than $29.50 per lot; and to divide equally with the plaintiff the amounts received less an agreed commission if agents to sell were employed necessarily. The plaintiff agreed to ‘convey to all purchasers of any of said lots good and sufficient deeds so long as' monthly payments on the loan were made and the defendant did not become in arrears for more than two months, and until only thirty-four lots remained to be sold or a number which in price equalled the amount of the $1,050 remaining to be paid.

If the transaction had been carried out as the agreement contemplated, when all the lots were sold the plaintiff would have parted with all his title, and he would have received payment of his loan with interest and one-half of the amount received by the defendant from sales of the lots less any necessary commissions at the agreed rate, while the defendant would have paid all expenses of sale and development (except the commission referred to), would have repaid his debt, and would have retained the agreed one-half received from the sale of the four hundred and sixty-eight lots together with the whole amount received from the sale of the one hundred and seventy-seven lots and of any other interest in the land.

The defendant, however, did not carry out his part of the agreement. He made only one payment of $100 on the loan. He sold and made contracts of sale of lots, but he did not account, as he had agreed, for the amounts received from purchasers, and in June, 1923, he left the state. The...