Boston Heating Co. v. Middleborough Sav. Bank

• Citation: 288 Mass. 433,193 N.E. 12
• Parties: BOSTON HEATING CO. v. MIDDLEBOROUGH SAV. BANK.
• Decision Date: 27 November 1934
• Court: United States State Supreme Judicial Court of Massachusetts

288 Mass. 433

193 N.E. 12

BOSTON HEATING CO.

v.MIDDLEBOROUGH SAV. BANK.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 27, 1934.

Exceptions from Superior Court, Suffolk County; Gibbs, Judge.

Action of contract by the Boston Heating Company against the Middleborough Savings Bank. Verdict for plaintiff in the sum of $700.42, and defendant brings exceptions.

Exceptions overruled.

M. J. Lipson and P. J. Aronson, both of Boston, for plaintiff.

M. Jacobs, of Boston, for defendant.

RUGG, Chief Justice.

The plaintiff seeks in this action of contract to recover a balance of $617.10 of the purchase price of an oil burner and equipment. The plaintiff's evidence in substance was as follows: In May, 1931, the plaintiff entered into a written conditional sale contract with one Finkel under which the plaintiff installed in real estate owned by Finkel an oil burner and equipment. Title thereto was to remain in the plaintiff as vendor until the purchase price of $685 plus interest on a series of notes given for the balance was fully paid, and upon failure to pay, the plaintiff reserved the right to remove the oil burner and equipment. Finkel paid $50 when the contract was signed and later one of the notes, leaving an unpaid balance of $617.10. In November, 1931, the defendant, being the holder of a first mortgage on the real estate, commenced foreclosure proceedings. The plaintiff informed the defendant that unless it would pay the balance owed on the oil burner it would be removed. The defendant asked the plaintiff to wait until after the foreclosure sale, and promised that if the defendant should become the purchaser at such sale it would pay the balance owed to the plaintiff. The defendant did become the purchaser at the foreclosure sale, and on November 28, 1931, wrote the plaintiff that it was ‘prepared to pay the balance on the oil burner.’ On September 15, 1931, the plaintiff for value assigned to the National Shawmut Bank of Boston all its right, title and interest in the oil burner and equipment, by a writing on the reverse side of the written contract mentioned, which was duly made and delivered by the plaintiff to the National Shawmut Bank with all of the notes referred to duly indorsed. These remained with the bank until April, 1932, when the plaintiff paid the bank the balance due it and received the notes and the contract with the assignment on the reverse side marked ‘cancelled.’

A written motion for a directed verdict in favor of the defendant was denied subject to its exception. A verdict was returned for the plaintiff. The exceptions state that this is all the evidence material to the question raised. The pleadings are made a part of the exceptions. The first count in the plaintiff's declaration was on the special contract which alleged, among other matters, that when the defendant was about to foreclose its mortgage there was a default in the payments due the plaintiff on the oil burner and equipment. The second count is on an account annexed for goods sold and delivered. It appears that the writ was dated on the fifteenth of January, 1932.

The record is extremely bare. That any of the series of notes given to the plaintiff for the purchase price of the property was overdue at the time foreclosure proceedings were instituted is not expressly supported by any direct evidence. The allegation of the declaration is specific on this point, however. The inference is possible that, because the defendant assented to the demand...