Berger v. Victory Realty Trust

• Decision Date: 29 May 1952
• Citation: 106 N.E.2d 429,329 Mass. 74
• Parties: BERGER et al. v. VICTORY REALTY TRUST.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 429

106 N.E.2d 429

329 Mass. 74

BERGER et al. v. VICTORY REALTY TRUST.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 4, 1952.

Decided May 29, 1952.

W. J. Curran, Boston, for plaintiffs.

A. J. Dimond, Boston, for defendant.

Before LUMMUS, RONAN, WILKINS, SPALDING and WILLIAMS, JJ.

SPALDING, Justice.

The plaintiffs bring this action of contract to recover a deposit of $1,000 made by them under a written agreement for the purchase and sale of a parcel of real estate. A judge of the Superior Court sitting without a jury, found for the plaintiffs. The case is before us on the defendant's exceptions to the judge's denial of several requests for rulings.

There was evidence of the following: The plaintiffs, Philip and Anna Berger, communicated with the defendant in response to the following advertisement: 'Apartment Available--12 apts. all of 6 and 7 rooms, income $8,200. See 231-243 Harvard Ave., Allston; Price $46,000. Cash about $8,000. Bal. mortg.' The female plaintiff testified that at that time she was 'under eviction proceedings.' On May 22, 1948, the parties entered into a written agreement whereby the defendant agreed to sell, and the plaintiffs to buy, the property advertised, which consisted of four three family houses. The premises were to be conveyed on or before June 30, 1948, 'by a good and sufficient quitclaim deed * * * conveying a good and clear title * * * free from all encumbrances' except a first mortgage in the sum of $37,300. The purchase price was to be $45,000, of which the plaintiffs made a part payment in the sum of $1,000 upon the execution of the contract. The balance was to be financed by the plaintiffs' assumption of the mortgage and payment of $6,700 'in cash upon the delivery of said deed.'

The contract provided that the premises were to be conveyed free of all tenants, except tenants in possession at the time the agreement was signed. But an earlier paragraph, the crux of the present controversy, stated: 'The party of the first part [defendant] agrees to evict tenant at 239 Harvard Ave., Suite 1, if the party of the second part [plaintiffs] so desires. This option is to be exercised no later than the date of passing papers.' There was also a provision for a refund of any payments made under the contract if the defendant was unable to make the stipulated conveyance.

On June 23, 1948, the defendant received a letter from the plaintiffs' attorney which stated that the would be at the Suffolk registry of deeds on Thursday, June 24, 1948, at 12:30 P. M. On the same day, the defendant received another letter from the plaintiffs' attorney stating: 'per your agreement, will you kindly have vacant at the time of passing papers, Suite #1 at 239 Harvard Avenue.'

It is not disputed that on June 24 the plaintiff Anna Berger and her attorney met the defendant and his attorney at the registry of deeds at the appointed time; that the defendant tendered a deed of the premises and asked Anna whether she had the balance of the purchase price; and that she replied that she did not have any money with her. She testified, however, that she had with her $4,510 in coperative bank shares and that her brother who was waiting nearby had with him coperative bank shares for $3,200. She further testified that, although able, ready, and willing to perform, 'she would not inasmuch as the defendant could not deliver to her a vacant apartment.'

There was evidence that the defendant had not instituted legal proceedings to evict the tenants occupying suite 1 during the interval between his receipt of the written notice on June 23 and the meeting at the registry of deeds on June 24. The defendant testified, however, that as a result of negotiations with the tenants' attorney the tenants agreed to vacate the premises by October 1, 1948. The defendant concedes that apartment 1 was occupied by tenants at the time the parties met at the registry of deeds.

Several requests presented by the defendant sought an interpretation of the paragraph in the agreement whereby the defendant agreed 'to evict tenant at 239 Harvard Ave. Suite 1, if the * * * [plaintiffs] so [desire],' and the plaintiffs were given the right to exercise 'this option * * * no later than the date of passing papers.' In substance the judge refused to rule in accordance with the defendant's first and fourth requests that the defendant was at all times ready to perform, and that the defendant did not agree to have suite 1 vacant at the time papers were passed. The denial of these requests was error.

The paragraph in the agreement around which this controversy turns was artlessly drawn and difficulties are encountered under any interpretation placed on it. It has been said that the word 'eviction' is 'borrowed from the feudal law, and * * * [is] often misleading when adopted into our modern systems of conveyancing and of actions.' Kramer v. Carter, 136 Mass. 504, 507. The original and technical meaning of the word was dispossession by legal process. Hamilton v. Cutts, 4 Mass. 349, 352; Nesson v. Adams, 212 Mass. 429, 430, 99 N.E. 93; Thomas v. Stickle, 32 Iowa 71, 76; Cowdrey v. Coit, 44 N.Y. 382, 392; Fritz v. Pusey, 31 Minn. 368, 370, 18 N.W. 94; Brass v. Vandecar, 70 Neb. 35, 38, 96 N.W. 1035. But when used today the word has a broader meaning and includes 'an actual expulsion of the tenant, or some act of a permanent character, done by the landlord with the intention and effect of depriving the tenant of the enjoyment of the demised premises or some part of it.' Bartlett v. Farrington, 120 Mass. 284; Royce v. Guggenheim, 106...