Bernstein v. Blumenthal

• Decision Date: 24 November 1928
• Citation: Bernstein v. Blumenthal, 127 Me. 393, 143 A. 698 (Me. 1928)
• Parties: BERNSTEIN v. BLUMENTHAL.
• Court: Maine Supreme Court

143 A. 698

BERNSTEIN

v. BLUMENTHAL.

Supreme Judicial Court of Maine.

Nov. 24, 1928.

Exceptions from Supreme Judicial Court, Cumberland County, at Law.

Action by Abraham J. Bernstein against Philip Blumenthal.Judgment for defendant, and plaintiff brings exceptions.Exceptions overruled.

Argued before WILSON, C. J., and PHILBROOK, DUNN, DEASY, BARNES, and PATTANGALL, JJ.

Israel Bernstein, of Portland, for plaintiff.

Sherman I. Gould and Abraham Breitbard, both of Portland, for defendant.

WILSON, C. J.In August, 1926, the defendant was the holder of several mortgages given by one Geisinger on certain real estate located on Spring street in the city of Portland.On the junior mortgage, the defendant had foreclosed; the period of redemption expiring Arpil 9, 1927.

The defendant, evidently assuming that the mortgagor might fail to redeem, authorized the plaintiff to procure a purchaser for the property when and if his title became absolute.A contract of sale negotiated by the plaintiff contained the following stipulation;

"It is further understood and agreed that in event that the owner of the equity of redemption redeems the.Spring Street property, then and in that event, this contract shall be null and void and the parties released from any and all obligations thereunder."

In the latter part of March, 1927, the mortgagor and owner of the equity of the option, with two others, who, it later developed, were to advance the money to take up the mortgages, called at the defendant's place of business and requested him to meet them at the office of an attorney named and his mortgages would be "taken up."

Upon an accounting as to the amount due, it appeared that the parties did not at that time have sufficient ready funds.A written agreement was entered into by which the defendant on April 12, 1927, or three days after the expiration of the equity of redemption, the mortgagor joining in the agreement and waiving his right of redemption, agreed, upon the payment of the amounts due under the mortgages, to convey the property to the parties advancing the money for the mortgagor, the parties advancing the money also entering into an agreement with the mortgagor to reconvey to him the property at any time within two years upon the payment of the sums so advanced, which the mortgagor agreed to pay.

After leaving the attorney's office, the defendant bethought himself of his contract of sale negotiated by the plaintiff under which he had agreed to convey unless the mortgagor redeemed from the mortgages, and, fearful lest the transaction as above outlined might not relieve him from the obligation to convey, returned to the attorney's office and explained the circumstances.

An examination of the records at the registry of deeds disclosing attachments of the equity of redemption of the mortgagor, and, fearful lest a discbarge of the mortgages would give the attaching creditors a prior lien over any security of the mortgagor could give the parties advancing the money to take up the mortgages under section 59, c. 86, R, S., it was arranged to have the mortgages assigned to the parties advancing the money, although the parties advancing the money would under the circumstances have been subrogated to the rights of the mortgagee.Williams v. Libby, 118 Me. 80, 105 A. 855;Kinsley v. Davis, 74 Me. 498;Kelley v. Jenness, 50 Me. 455, 79 Am. Dec. 623;27 Cyc. 1435, 1438.

The plaintiff then brought this action to recover his commission as a broker in negotiating the conditional contract of sale in August, 1926, claiming that, as there had been no discharge of the mortgage on the record, but an assignment, and the period of redemption having expired, there had been no redemption of the mortgage within the contemplation of the parties to the contract of sale, and therefore the plaintiff was entitled to his commission as a broker.

The cause was first referred to a referee, who made a report finding the above facts and submitting to the court the question of whether there had been a redemption as a matter of law.

The judge below ruled pro forma that there had been a redemption of the mortgage as a matter of law and ordered judgment for the defendant.To this ruling, the plaintiff took exceptions.We think the exceptions must be overruled.

Under the stipulations in the bill of exceptions, the issue is determined by the intention of the parties to the contract of sale as to what they had in mind by the provision above quoted excusing performance.

In construing this provision, the court receives no aid from the entire contract, it not being made a part of the bill of exceptions, and we must therefore assume it throws no light upon it; nor is any assistance afforded by evidence of an interpretation by the parties themselves.The provision must speak for itself.

We are not impressed, however, with the view that only a payment and discharge of the mortgage, or a redemption only under circumstances under which the defendant could be compelled to discharge the mortgage, was contemplated.Such a construction imputes an intent to the parties to the contract of sale to take every advantage of the mortgagor's necessities.

While the bill of exceptions does not in terms set forth that...