Bray v. Hickman

• Decision Date: 29 May 1928
• Citation: 263 Mass. 409,161 N.E. 612
• Parties: BRAY v. HICKMAN. ALTMAN v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

263 Mass. 409

161 N.E. 612

BRAY

v.HICKMAN.

ALTMAN

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

May 29, 1928.

Exceptions from Superior Court, Suffolk County; Stanley E. Qua, Judge.

Two actions tried together by Agnes B. Bray against Annie Hickman and by Louis Altman against the same defendant. Verdict for plaintiff in each case, and defendant brings exceptions. Exceptions overruled in each case.J. H. Kenney, of Boston, for Nellie S. Ternan, Conservator.

M. C. Melleher and Samuel Rosenberg, both of Boston, for trustee in bankruptcy of Louis Altman.

W. B. Sullivan, Jr., of Boston, for Agnes B. Bray.

RUGG, C. J.

These are two actions of contract, tried together; the first, by Mrs. Bray to recover damages for breach of an agreement by the defendant to sell land, furniture and furnishings; the second, by Altman to recover a broker's commission in securing Mrs. Bray as purchaser of the same property. The jury returned a verdict for the plaintiff in each case and answered in favor of the contentions of each plaintiff certain questions put by the court. Exceptions by the defendant bring the cases here.

An ‘Agreement for Sale’ in writing and under seal was signed by the plaintiff Bray and the defendant, the material parts of which were in these words:

‘I, Annie Hickman, of Boston, Massachusetts, County of Suffolk, agree to sell the land with the five story brick building situated thereon, now numbered 121 Beacon street, in the city of Boston and commonwealth of Massachusetts, including the furniture and furnishings now on said premises (Excepting that belonging to tenants) to Agnes B. Bray of Boston, Massachusetts, county of Suffolk, for the sum of thirty thousand ($30,000) dollars, subject to a first mortgage of fifteen thousand ($15,000) dollars, and a second mortgage to be held by Mrs. Hickman in the sum of nine thousand ($9,000) dollars, paying one thousand ($1,000) dollars and interest at the rate of six (6%) percent. per annum on the second mortgage until payment in full is made.

‘In consideration of the above transaction, Agnes B. Bray agrees to pay six thousand ($6,000) dollars of which five hundred ($500) dollars is to be paid at the time of signing this agreement. Fifty-five hundred ($5,500) dollars is to be paid at the time of taking title.

‘Title to this property is to be had on or before the first day of March, nineteen hundred and twenty-three.

‘Annie Hickman agrees to pay a broker's commission of two and 1/2 (2 1/2) percent. to the Commonwealth Realty Company of Boston, as brokers in this sale.’

In our opinion this agreement is not too vague and indefinite for enforcement, but constitutes a valid contract. It is informal. It is obscure. It is difficult of satisfactory construction. The parties appear to have been in dispute as to its meaning. But it is not unintelligible. It is susceptible of interpretation. So far as reasonably practicable it should be given a construction which will make it a rational business instrument and will effectuate what appears to have been the intention of the parties. The time for performance is specified. The obligation assumed by the defendant as set out in the first paragraph is definite as to the property to be sold, the person to whom it is to be sold, and the price for which it is to be sold. The item as to the second mortgage is one source of controversy. The property to be sold is described with exactness as specified ‘land with the * * * building situated thereon, * * * including the furniture and furnishings now on said premises. * * *’ It is that property which is to be sold subject to a first mortgage and ‘a second mortgage to be held by’ the defendant. There is no stipulation in the agreement that such second mortgage is to cover the real estate alone, or the personal property alone. The parties have failed in the agreement to exempt any part of the property to be sold from being ‘subject to * * * a second mortgage.’ Therefore the natural as well as the grammatical construction of the agreement is that all the property to be sold, both real and personal, is thus to be made ‘subject to * * * a second mortgage.’ The circumstance that the first mortgage, to which also the conveyance was to be made subject, appears on the evidence to have covered the real estate alone, is of no consequence in this connection. That was an existing and outstanding mortgage. The agreement does not undertake to vary its terms. It does not define with exactness the property covered by that mortgage further than to say that the sale of ‘the land with the * * * building * * * including the furniture and furnishings' is to be ‘subject to a first mortgage. * * *’ That means only that whatever property is covered thereby is subject to that mortgage. But there is no implication that the second mortgage is to cover only the same property included in the outstanding first mortgage and no other property. The second mortgage was not in existence but was to be executed as a part of the price to be paid for the sale. That is apparent from the fact that the defendant was the owner and vendor of all the property. She could not then hold a second mortgage on her own property. Both parties to the agreement understood that the defendant was, as shown by their conduct and all the circumstances, the owner and vendor of all the property, and that the second mortgage was not then in existence but was to be executed by the vendee as a part of the sale. It follows that the agreement rightly construed provides that the second mortgage was to be given by the purchaser and was to cover all the property of every nature to be transferred pursuant to the agreement.

The agreement fairly construed also means that a note by the purchaser was to be given for nine thousand dollars, for which the second mortgage was to be security. The agreement, in view of all its terms, means that a note and mortgage are to be given. This appears to have been the construction put upon it by the parties. No dispute arose between them on that point. That is entitled to some weight. Southborough v. Boston & Worcester Street Railway, 250 Mass. 234, 239, 145 N. E. 422, and cases collected. The agreement as to the time of payment of the second mortgage is clumsily phrased but its meaning can be understood. It signifies that the payment is to be at the rate of $1,000 each year until the principal shall be paid in full, with interest at the rate of six per cent. The words ‘per annum on the second mortgage until payment in full is made’ modify ‘paying’ $1,000 and ‘interest’ at the stated rate. This construction gives force to all the words used by the parties. That rule of construction ought to be followed whenever possible. It is to be presumed that parties in executing a written contract employed all their words with a purpose and with the design that every word be given its appropriate meaning. It is an elementary rule in the construction of contracts that whenever practicable every word used by the parties shall be given some effect. Rocci v. Massachusetts Accident Co., 222 Mass. 336, 343, 110 N. E. 972, Ann. Cas. 1918C, 529.Koshland v. Columbia Ins. Co., 237 Mass. 467, 130 N. E. 41. To construe the agreement as meaning something else, or as failing to express this meaning, would require us to attribute no effect to several words and to treat them as surplusage. That would be contrary to sound principles of law as to the interpretation of written instruments.

The statement in the agreement of the entire purchase price as $30,000, a part of which is made up of the first mortgage of $15,000, subject to which the sale is to be made, sufficiently imports that the buyer was to assume and pay and save the seller harmless on that mortgage. In no other way can the vendee pay the whole of the named purchase price. Jager v. Vollinger, 174 Mass. 521, 55 N. E. 458.Fiske v. Tolman, 124 Mass. 254, 26 Am. Rep. 659.

The second paragraph of the agreement deals only with the cash payment to be made by the buyer. But she could reach the point of cash payment only after making provision, by assuming the first mortgage and executing and delivering the second mortgage, for the payment of the balance of the purchase price. The agreement of the defendant to sell ran to the plaintiff Bray alone. The entire instrument imports, therefore, an agreement on the part of the plaintiff Bray to pay...