Brand v. Suburban Land Co.

• Decision Date: 01 February 1938
• Citation: 12 N.E.2d 737,299 Mass. 336
• Parties: ADOLPH A. BRAND v. SUBURBAN LAND COMPANY, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

299 Mass. 336

12 N.E.2d 737

ADOLPH A. BRAND v. SUBURBAN LAND COMPANY, INC.

Supreme Judicial Court of Massachusetts, Suffolk.

February 1, 1938

January 5, 1938.

Present: RUGG, C.

J., DONAHUE, QUA DOLAN, & COX, JJ.

Evidence, Extrinsic affecting writing. Law of the Trial. Practice, Civil Exceptions: materiality.

Parol evidence properly was excluded at the trial of an action between the parties to a contract under seal because it contradicted an unequivocal statement of fact in the contract.

In the absence of any appeal or exception to action by a judge during the trial, sustaining a demurrer to a declaration in set-off that action became the law of the trial, and an exception to a previous exclusion of evidence relating to the set-off could not be sustained.

CONTRACT. Writ in the Municipal Court of the City of Boston dated October 17 1934.

Upon removal to the Superior Court, the action was heard without a jury by M. Morton, J., who found for the plaintiff in the sum of $1,704. The defendant alleged exceptions.

D. Flower, for the defendant.

C. W. Rowley, (H.

J. Finkelstein with him,) for the plaintiff.

DOLAN, J. This is an action of contract based on a written agreement under seal, entered into between the parties under date of March 13, 1934, which recited that the defendant had assigned a certain mortgage to the Revere Trust Company, the mortgage note being indorsed by the plaintiff; that the plaintiff had a deposit in said trust company of approximately $1,600; that the trust company was withholding dividends on the deposit from the plaintiff on account of the indebtedness created by the assignment of the mortgage; that the defendant intended at its convenience to pay or cause to be paid its indebtedness to the trust company "and to avail itself of the money [then] on deposit with said bank or the dividends declared thereon towards such payment"; and wherein it was mutually agreed between the parties that the defendant should have the right to use the dividends from the deposit "towards the payment of said mortgage to" the trust company, and that at the settlement with the "bank and in any event not later than September 1, 1934," the defendant would pay to the plaintiff the sum of $1,600, the amount on deposit with the trust company by the plaintiff. The action was entered in the Superior Court on November 10, 1934. The defendant filed an answer alleging that it executed the agreement relying on the representation of the plaintiff that he had a deposit of $1,600 in the Revere Trust Company; that the amount on deposit was in fact less than $1,600; that the plaintiff warranted that the condition of the trust company was such that it would pay a dividend of ninety per cent to its savings account depositors, but that the trust company paid a dividend in an amount far less than ninety per cent; that the plaintiff failed to deliver to the defendant the acknowledgment by the trust company of the proof of claim made by the plaintiff "which it is necessary for the defendant to have in order to claim any dividends declared by the said bank"; and that "the defendant owes the plaintiff nothing." The defendant also filed a declaration in set-off in two counts, the first alleging that the plaintiff owed the defendant $1,075 which it had turned over to him on his representation that he had paid that sum as a commission on a loan which he had negotiated for it, and that in fact no such commission was ever paid in connection with the loan; the second count was on an account annexed for $1,075 for money had and received by the plaintiff to the defendant's use. The plaintiff filed an answer in general denial. The case was tried before a judge of the Superior Court without a jury.

During the trial the defendant proposed certain questions to a witness in cross-examination, tending to bring out that the deposit in the Revere Trust Company was in whole or in part the property of the defendant, and not that of the plaintiff as recited in the agreement. The judge excluded this line of inquiry and the defendant excepted. The evidence sought to be presented was properly excluded as tending to contradict by parol the terms of the written agreement which was plain and unequivocal on its face as to the ownership of the deposit. Glackin v. Bennett, 226 Mass. 316 , 319. Western Newspaper Union v. Dittemore, 264 Mass. 74 , 77. Kothe v. Phoenix Mutual Life Ins. Co. 269 Mass. 148 , 151. Mechaber v. Pittle, 270 Mass. 193 , 197. Whitty Manuf. Co. Inc. v. Clark, 278 Mass. 370 , 374.

The defendant attempted to introduce evidence in support of its claim in set-off, but the judge "refuse[d] to hear evidence on the declaration in set-off because in . . . [his] opinion, as...