Fisher v. Katler

• Decision Date: 05 January 1933
• Citation: 183 N.E. 759,281 Mass. 340
• Parties: FISHER v. KATLER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

281 Mass. 340

183 N.E. 759

FISHER

v.KATLER.

Supreme Judicial Court of Massachusetts, Hampden.

Jan. 5, 1933.

Appeal from Superior Court, Hampden County.

Suit by Jacob Fisher against Louis Katler. From a decree in favor of plaintiff, defendant appeals.

Affirmed.

M. L. Orlov, of Boston, for appellant.

Harry M. Ehrlich, of Springfield, for appellee.

CROSBY, J.

This is a suit for specific performance of an oral contract by which the defendant agreed to give the plaintiff a note and to secure it with a second mortgage upon certain real estate. The defendant in his answer denied that he made the agreement and pleaded the statute of frauds. The case was heard by a judge of the Superior Court who made certain findings and rulings and ordered a decree in favor of the plaintiff. A final decree was entered from which the defendant appealed. The evidence is reported.

The plaintiff, the defendant and one Kurnitsky were owners as tenants in common of certain real estate, the defendant owned a one-half interest and the plaintiff and Kurnitsky each owned one quarter interest. The defendant occupied a store in the building on the property. The judge made the following findings: ‘On or about May 20, 1930, the plaintiff and the defendant entered into an oral contract by which, in substance, the defendant promised that if the plaintiff would not bid at the foreclosure sale of the property, which was then impending, the defendant, after he had bought in the property at such sale and had given a new mortgage thereon * * * for fifteen thousand dollars (for which he had already arranged), would give the plaintiff a note secured by a second mortgage thereon payable in three years with interest payable each six months at six per cent. Both parties expected that the defendant would bid at the sale to protect the property, as he would have to do to protect his own larger interest in it, and both expected that he would be the purchaser. The plaintiff took the risk that the defendant might not buy.’ The judge further found that the plaintiff refrained from bidding at the sale, that the defendant bid in the property and gave a new mortgage for $15,000 to a savings bank, but that thereafter, in breach of the oral agreement, refused to give to the plaintiff a note for $3,000 secured by a second mortgage.

The questions presented for decision are whether the contract was founded upon a valid consideration and whether it was within the statute of frauds and for that reason unenforceable. The finding was warranted upon conflicting testimony that the plaintiff agreed he would not bid at the foreclosure sale if the defendant, after he had bid in the property, would give the plaintiff a note secured by a second mortgage payable in three years with interest at six per cent. payable each six months. It is plain that the agreement was for a valid consideration. Upon the question whether the statute of frauds is a defense, it appears...