Boston Heating Co. v. Middleborough Savings Bank

• Decision Date: 27 November 1934
• Citation: 288 Mass. 433
• Parties: BOSTON HEATING COMPANY v. MIDDLEBOROUGH SAVINGS BANK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

288 Mass. 433

BOSTON HEATING COMPANY v. MIDDLEBOROUGH SAVINGS BANK.

Supreme Judicial Court of Massachusetts, Suffolk.

November 27, 1934

November 7, 1934.

Present: RUGG, C.

J., CROSBY, PIERCE DONAHUE, & LUMMUS, JJ.

Contract Consideration. Pledge. Frauds, Statute of.

A forbearance, by the vendor of property under a contract of conditional sale to remove the property from real estate after default under the contract by the vendee, upon a promise by a mortgagee of the real estate, who was proceeding with foreclosure, to pay the amount due on the contract if he became purchaser at the foreclosure sale, was a sufficient consideration for such promise.

Upon a meager record before this court upon an exception by the defendant to the denial of his motion that a verdict be ordered in his favor at the trial of an action for the amount of a balance remaining due to the plaintiff under the provisions of a contract of conditional sale of an oil burner and equipment installed upon real estate which the defendant, after making a special agreement with the plaintiff to pay the amount of such balance, had purchased at a foreclosure sale, there was evidence that previous to the defendant's promise and the commencement of the action, the plaintiff had assigned to a national bank all his right, title and interest in the oil burner and equipment and had indorsed and delivered to it the notes of the vendee covering instalment payments under the contract of conditional sale; and that, about three months after the action was brought, but before the trial, "the plaintiff paid the bank the balance due it and got back the notes and contract with the assignment . . . marked `cancelled.'"

Held, that (1) Taking the evidence in its aspect most favorable to the plaintiff, the inference was permissible that the assignment to the national bank was by way of collateral security for an indebtedness;

(2) It further was inferable that after the assignment and at the time the action was brought the plaintiff had a beneficial interest in the property assigned which entitled him to enforce rights respecting it;

(3) The motion properly was denied.

Where a chose in action has been assigned as collateral security, the assignor may maintain an action in his own name, and if it is reassigned during the pendency of the action the assignor can prosecute the action for his own benefit. Per RUGG, C.J.

The express promise of the mortgagee to pay the balance due to the vendor under the contract of conditional sale in the circumstances above described was a primary obligation of the mortgagee to the vendor and was not within the statute of frauds.

CONTRACT. Writ dated January 15, 1932. The action was tried in the Superior Court before Gibbs, J. Material evidence is described in the opinion. The only reference in the record to the assignment by the plaintiff to The National Shawmut Bank of Boston, referred to in the opinion, was as follows: "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 referred to, by a writing on the reverse side of the contract mentioned, which was duly made and delivered by the plaintiff to said bank with which the plaintiff indorsed and delivered to said bank all of the notes referred to. This remained with the bank until April, 1932, when the plaintiff paid the bank the balance due it and got back the notes and contract with the assignment on reverse side marked `cancelled.'"

At the close of the evidence, the defendant moved generally that a verdict be ordered in its favor. The motion was denied, subject to exception by the defendant. There was no other exception. There was a verdict for the plaintiff, returned on April 18, 1934, in the sum of $700.42.

The case was submitted on briefs. M. Jacobs, for the defendant.

M. J. Lipson & P.

J. Aronson, for the plaintiff.

RUGG, C.J. 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 ...