Bergson v. H.P. Hood & Sons
| Decision Date | 26 May 1938 |
| Citation | 15 N.E.2d 196,300 Mass. 340 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | HARRY BERGSON, receiver, v. H. P. HOOD & SONS, INC. |
February 1, 1937.
Present: FIELD DONAHUE, LUMMUS, & QUA, JJ.
Assignment. Contract, Construction.
Practice, Civil Exceptions: whether error harmful. Evidence, Extrinsic affecting writing.
An assignment in writing by a corporation to its principal creditor of "all the accounts receivable and choses in action against any person . . . now due or coming due," given as a part of one transaction consummated by several instruments executed on the same day between the corporation the creditor and a purchaser of the corporation's property, by which the corporation, after getting by delivery of the assignment a discharge by the creditor of a lien on its property, was able to make the contract to sell its property, was an effectual assignment of the purchase price, although the contract of sale was not delivered until after the assignment.
Parol evidence, offered to vary or contradict the terms of a written assignment which was not ambiguous, was rightly excluded, and the admission of parol evidence which tended to corroborate the assignment was not prejudicial.
CONTRACT. Writ in the Municipal Court of the City of Boston dated September 22, 1932.
Upon removal to the Superior Court, the action was heard by Dillon, J., who found for the defendant. The plaintiff alleged exceptions.
H. Bergson, for the plaintiff.
F. W. Crocker, (J.
B. Ames with him,) for the defendant.
The plaintiff, as receiver of Maple Farm Milk Company of Massachusetts, has brought this action to recover an amount due from the defendant under a contract. The contract was an agreement dated September 1, 1927, for the purchase by the defendant and the sale by the Maple Farm Milk Company of certain real estate located in Vermont.
The parties made a pretrial agreement. They agreed that the only issue to be tried was whether or not the amount of $1,970.59, which the plaintiff sought to recover in this action was "covered by a written assignment," dated September 1, 1927, by the Maple Farm Milk Company to one Graustein. They also agreed that if the amount of $1,970.59 was covered by the assignment judgment is to be entered for the defendant, but if that amount was not covered by the assignment judgment is to be entered for the plaintiff for $1,970.59 with interest from the date of the writ.
The case was heard by a judge of the Superior Court sitting without jury. He found for the defendant and the case comes to us on exceptions taken to rulings made by him at the trial.
It is not in dispute that $1,970.59 is the amount for which the defendant was required to account to some one, that amount being the balance of the purchase price of the Vermont real estate, after deducting moneys properly paid to free the real estate from encumbrances. The question is whether, by reason of the execution of the assignment to Graustein, the company divested itself of the right to the balance of the purchase price of the real estate.
The Maple Farm Milk Company was, on September 1, 1927, negotiating with the defendant for the sale of its business, including its goodwill and the greater part of its personal assets and the real estate in Vermont. There was a meeting on that day which was attended by representatives of the Maple Farm Milk Company and of the defendant, and by their attorneys, and by Graustein. The sale of the business and property of the Maple Farm Milk Company was there discussed. The company was heavily indebted to Graustein and he held a mortgage on the greater part of its personal property. This property the Maple Farm Milk Company and the defendant desired to have included in any sale which should be made, and the defendant did not wish to purchase it subject to the Graustein mortgage.
At the meeting on September 1, 1927, the Maple Farm Milk Company and the defendant reached an agreement for the sale and purchase of the business of the Maple Farm Milk Company including its goodwill and its personal assets and the Vermont real estate. By agreement of the buyer and the seller and of Graustein, who was ultimately to receive the proceeds of the sale, the sum of $22,200, the purchase price of the business, the goodwill and the personal property, was that day paid by the defendant to the attorney of the Maple Farm Milk Company, to be held by him in escrow for a period of fifteen days, pending an adjustment, if necessary, for the failure of the Maple Farm Milk Company to deliver any of the listed articles of personal property. The attorney was also authorized to receive the balance of the purchase price of the real estate, $2,600, after the deduction of amounts paid to remove encumbrances, on the date set for giving a deed, September 15, 1927.
The judge found that the assignment to Graustein was signed and delivered before the execution of the agreement for the sale of the real estate and of the other documents executed on the same day; that the assignment and the agreements of sale were parts of an entire transaction, authorized in its entirety by the stockholders and directors of the Maple Farm Milk Company; that the Maple Farm Milk Company desired to sell its personal property on which Graustein held a mortgage in order to close its business and could not do so unless it first took care of Graustein; that the assignment was necessarily signed and delivered before a contract of sale was made with the defendant, and that there was no other sum of money to come due to the company after September 1 than what should be paid as purchase price of the property by the defendant. There was evidence warranting these findings. After the judge had made the findings he assented to a request by the plaintiff for "a finding of fact in the line that your Honor has stated before, namely . . . that the [assignment] was signed, executed and delivered as you said `necessarily so' before any contract was made with . . . [the defendant]." In view of what the judge had earlier said it must be assumed...
To continue reading
Request your trial