Cohen v. Edinberg

• Decision Date: 28 November 1916
• Citation: 225 Mass. 177,114 N.E. 294
• Parties: COHEN v. EDINBERG. ROSENBERG v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

225 Mass. 177

114 N.E. 294

COHEN

v.EDINBERG.

ROSENBERG

v.SAME.

Supreme Judicial Court of Massachusetts, Worcester.

Nov. 28, 1916.

Exceptions from Superior Court, Worcester County; Wm. C. Wait, Judge.

Actions by Imen Cohen and by Harry Rosenberg against David Edinberg. There was a finding for defendant in both cases, and plaintiffs bring exceptions. Exceptions overruled.

Amos T. Saunders, Simon G. Friedman, and Paul D. Howard, all of Worcester, for plaintiffs.

Marvin M. Taylor and Marvin C. Taylor, both of Worcester, for defendant.

LORING, J.

The only questions in these two cases arise out of exceptions taken to the exclusion of evidence.

The cases were tried by a judge sitting without a jury. The facts found by him were in substance these: Cohen (the plaintiff in the first action) made a written agreement with Edinberg by which he agreed to buy and Edinberg agreed to sell to him three parcels of land. The land in question was subject to first mortgages amounting in the aggregate to $12,500. The purchase money was $19,250, to be paid as follows: $12,500 by Cohen assuming the first mortgages; $200 was paid to a third person as a deposit on the making of the contract; $1,000 (made up of $800 in cash and a note for $200) was to be paid on the delivery of the deed; the remaining $5,550 was to be paid by the purchaser's notes amounting to that sum secured by second mortgages on the land conveyed to be paid in certain installments specified in the written agreement. At the date of the written agreement one Wood and one Barnes held construction mortgages on the land in question amounting in the aggregate on their face to $10,000. At that time there was due on these mortgages to Wood the sum of $3,500 ‘and a large sum the exact amount of which was not shown in evidence was due to Barnes.’ It was provided in the written agreement that arrangements were to be made with Wood and Barnes ‘whereby the mortgages held by them are to be discharged and three new mortgages given them as their interests may appear totaling in amount $5,550.’ The written agreement ended with this provision:

‘If said installments (by which the new second mortgages amounting to $5,550 were to be paid) cannot be apportioned satisfactorily to Barnes and Wood, or if, however, said arrangements with said Barnes and Wood cannot be perfected, this agreement is to be void and of no effect and the deposit herein named is to be returned to party of second part. If said arrangements can be perfected, either party failing to carry out terms of this agreement shall forfeit to the other as liquidated damages the sum of two hundred dollars. If said arrangements cannot be perfected as aforesaid with Barnes and Wood, a broker's commission is not to be paid to Harry Rosenberg by party of the first part. If same are perfected, Rosenberg is to receive commission from party of the first part’-that is to say, from Edinberg.

By the true construction of the written agreement the arrangements (by which Barnes and Wood were to take new second mortgages amounting to $5,550 in place of those then held by them) were to be made by Rosenberg. It was expressly stipulated in the written agreement that Rosenberg had to perfect those arrangements to earn his commission. Rosenberg was not a party to the written agreement, but as between Cohen and Edinberg, who were the parties to it, the arrangements were to be made by Rosenberg. Rosenberg undertook to make those arrangements, but failed in his attempt. He procured agreements from Barnes and Wood, but those agreements gave to Barnes and Wood the $1,200 which by the terms of the written agreement was to be received by Edinberg as part of the purchase money on making the conveyance.

The first action was brought by Cohen (the purchaser of the land) on the ground that Edinberg wrongfully refused to make a conveyance. The second was brought by Rosenberg to recover a broker's commission.

On these facts neither plaintiff was entitled to recover. The written agreement between Cohen and Edinberg had come to an end on Rosenberg's failure to procure an agreement by Barnes and Wood to take the new second mortgages in place of those then held by them and this same failure on Rosenberg's part was fatal to his claim that he had earned a commission if the statement in the written agreement between Cohen and Edinberg was correct as to the conditions under which a commission was to be taken to have been earned by him.

‘These cases were tried together and it was agreed that both plaintiffs were entitled to recover or that...