Downey v. Levenson
| Decision Date | 08 January 1924 |
| Parties | DOWNEY v. LEVENSON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Municipal Court of Boston, Appellate Division.
Action of contract in the municipal court of Boston by Stanley W. C. Downey against Henry H. Levenson, to recover money paid under written contract for the purchase and sale of real estate. There was a finding for plaintiff, the appellate division dismissed a report, and defendant appeals. Order dismissing report affirmed.
J. J. Kaplan, of Boston, for appellant.
S. Sigilman, of Boston, for appellee.
This is an action by the vendee, under a written contract for the purchase and sale of real estate, to recover $2,000 paid as a deposit, on the ground that the vendor was unable to give a good title in accordance with the terms of the agreement. The record shows that the action was tried twice in the municipal court of the city of Boston. At the first trial there was a finding for the defendant. Upon report the appellate division ordered a new trial, and the defendant appealed. At the second trial before another judge of the court, he filed a report and found for the plaintiff. Thereafter the appellate division dismissed the report and the defendant appealed. The questions before us are (1) whether the appellate division rightly ordered a new trial after a finding for the defendant at the first trial, and (2) whether there was any error at the second trial.
Under the agreement one Seligman was named as the purchaser; he afterwards assigned his interest therein to the plaintiff. The contract, dated June 29, 1920, provided among other things that the conveyance of the real estate was to be made on or before September 1, 1920, subject among other incumbrances to a lease to H. B. Hood Company of a store on the premises ‘which lease expires January 1, 1921.’ The agreement further provided that--
‘If the party of the first part shall be unable to give title or to make conveyance as above stipulated, any payments made under this agreement shall be refunded, and all other obligations of either party hereunto shall cease, but the acceptance of a deed and possession by the party of the second part shall be deemed to be a full performance and discharge hereof.’
The deposit having been made as stipulated the plaintiff declined to accept a deed of the property, and brought this action to recover the deposit because the term of the lease above referred to contained a privilege for the extension thereof of one more year; it was not claimed that there was any defect in the title other than the renewal privilege in the lease above referred to.
[1][2] At the first trial the judge made the following finding:
‘I find as a fact that the lease herein referred to expired January 1, 1921, but contained the privilege of extension of one year at the same rate; and that this lease was exhibited by the defendant to the plaintiff's assignor prior to the execution of the agreement for the sale of the property upon an alleged breach on which the present suit is based.’
The judge gave the plaintiff's first request, which was in effect that the words in the agreement import ‘plainly and unambiguously that the term of the lease to H. B. Hood Company did not extend beyond and after January 1, 1921.’ The plaintiff's other requests were denied. Any previous talk between the parties was merged in the written contract as finally executed, and the finding of fact above recited makes it plain that there was a breach of it on the part of the defendant. The circumstances that Seligman, the plaintiff's assignor, examined the title before executing the agreement, and that he had possession of and examined the lease before the contract was entered into do not preclude the plaintiff from maintaining this action.
The plaintiff's fourth request for a ruling that ‘under the terms of said agreement and the assignment thereof to the plaintiff, the plaintiff was not bound to accept a deed of the premises therein described if the term of said lease extended or might extend beyond and after January 1, 1921,’ should have been given.
[3][4] It cannot be doubted that parol evidence is admissible to establish waiver or mistake, Leathe v. Bullard, 8 Gray, 545; but there was no evidence before the trial judge sufficient to warrant a finding that the plaintiff or his assignor waived the provision in question in the Hood lease, or that there was any mutual mistake with reference thereto. The recital in the agreement that the lease was to expire January 1, 1921, is explicit and free from ambiguity, and the judge so ruled; it cannot be construed as referring to the original term alone. The plaintiff had a right to rely on the recital that it was for one year only; and,...
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...the finding of the first trial judge.’ Stafford v. Commonwealth Co., 263 Mass. 240, 242, 160 N.E. 820, 821. See also Downey v. Levenson, 247 Mass. 358, 365, 142 N.E. 85. The Appellate Division had no jurisdiction of anything except the correctness of the rulings of the judge in point of law......
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