Dangelo v. Farina

• Decision Date: 29 January 1942
• Citation: 310 Mass. 758,39 N.E.2d 754
• Parties: DANGELO v. FARINA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

310 Mass. 758

39 N.E.2d 754

DANGELO

v.FARINA.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 29, 1942.

Appeal from District Court of Newton, Appellate Division; Weston, judge.

Action of contract by Joseph Dangelo against Mary Farina to recover the agreed price of the equity of redemption in certain premises. From an order of the Appellate Division dismissing a report finding for the plaintiff, the defendant appeals.

Order affirmed.

Before FIELD, C. J., and QUA, DOLAN, and RONAN, JJ.

J. Finelli, of Newton, for plaintiff.

T. F. Donnelly, of Newton, for defendant.

RONAN, Justice.

This is an action of contract to recover the agreed price of the equity of redemption in certain premises-which was also the amount due upon a note made by the defendant's husband-which the plaintiff conveyed to the defendant in consideration of the promise of the defendant and her husband to pay the balance due on the note. The judge found for the plaintiff and the defendant appeals from an order of the Appellate Division dismissing the report.

There was evidence that Michael Farina, the defendant's husband, gave the plaintiff, in 1922, a promissory note for $450; that he made various payments thereon, the last one being in 1936; that Farina, in 1929, conveyed certain premises to the plaintiff, as security for the payment of the note, by a deed in which the defendant released all right of dower and homestead; that the plaintiff, in accordance with the request of the defendant and her husband, conveyed these premises, in 1937, to her in consideration of their promise to pay him the balance due on the note; but that nothing has since been paid to the plaintiff. The defendant denied that she was indebted to the plaintiff, and set up in her answer the statute of limitations, and that portion of the statute of frauds that bars an action on a contract concerning an interest in land where the contract is not evidenced by a writing signed by the party to be changed or his agent.

The judge was right in refusing the first and sixth requests for rulings, to the effect that the evidence was insufficient to warrant a finding for the plaintiff or to sustain the burden of proof. The evidence was ample to support the general finding for the plaintiff. The judge, however, should have granted the second request, that there was evidence sufficient to warrant a finding for the defendant. The defendant had testified that she did not owe anything to the plaintiff. It would not have been inconsistent for the judge to have granted the request and then, after weighing all the evidence,to have found for the plaintiff. Commonwealth v. Hull, 296 Mass. 327, 5 N.E.2d 565;Marquis v. Messier, 303 Mass. 553, 22 N.E.2d 473. There was error in denying this request unless the record clearly shows definite and specific findings which rendered immaterial the denial of the request. The judge made detailed findings of fact which in all material respects were contrary to the evidence introduced by the defendant and these findings, which were made upon all matters then in issue, supported and required a general finding for the plaintiff. It thus appears that the decision reached by the judge was not affected by the denial of the request. Under these circumstances, the failure to grant the request does not constitute reversible error. Strong v. Haverhill Electric Co., 299 Mass. 455, 13 N.E.2d 39;Ajax Shoe & Leather Co. v. Selig, 305 Mass. 389, 25 N.E.2d 990;Himelfarb v. Novadel Agene Corp., 305 Mass. 446, 26 N.E.2d 320.

The plaintiff's declaration contained two counts. The first alleged that the plaintiff, the owner of certain premises, conveyed the equity in the said premises above an existing mortgage to the defendant in accordance with an agreement with her to pay him a certain sum which she had neglected and refused to pay. The second count was upon an account annexed for a certain sum for the ‘agreed price of equity above mortgage’ in the same premises as those described in the first count. The judge found that the defendant and her husband deeded the premises mentioned in the declaration to the plaintiff as security for the payment of the note and that thereafter the plaintiff, at the request of the defendant and her husband and in consideration of their promise to pay the note, conveyed the premises to the defendant. The defendant contends that the plaintiff was never the owner of these premises; that although they were conveyed to him by a deed ‘absolute in form,’ all that the plaintiff got was an equitable mortgage; that the equity of redemption was in the defendant's husband; and that, when the plaintiff...