Fisher v. Katler

• Citation: 281 Mass. 340
• Parties: JACOB FISHER v. LOUIS KATLER.
• Decision Date: 03 January 1933
• Court: United States State Supreme Judicial Court of Massachusetts

281 Mass. 340

JACOB FISHER v. LOUIS KATLER.

Supreme Judicial Court of Massachusetts, Hampden.

January 3, 1933

September 22, 1932.

Present: RUGG, C.

J., CROSBY, WAIT & DONAHUE, JJ.

Equity Jurisdiction, Specific performance. Frauds, Statute of. Contract, Validity, Consideration.

A tenant in common of real estate which was subject to a mortgage, who was in possession of a store thereon, orally agreed with his cotenant that, if the cotenant would not bid at a sale of the real estate to be held in foreclosure of the mortgage, he would give him a note for a certain sum secured by a second mortgage on the property. The cotenant did not bid, the tenant in possession bought at the sale and then refused to give the promised note and mortgage. In a suit by the cotenant for specific performance of the oral agreement, it was held, that

(1) The promise of the defendant was supported by a valid consideration;

(2) The agreement was not contrary to public policy; (3) The plaintiff having fully performed his part of the agreement, the statute of frauds was no defence;

(4) The plaintiff was entitled to a decree for specific performance.

BILL IN EQUITY filed in the Superior Court on June 23, 1931, and afterwards amended.

In the Superior Court, the suit was heard by Qua, J. Material facts found and rulings made by him are stated in the opinion. In accordance with such findings and rulings, a final decree was entered by order of Lummus, J., directing the defendant to execute and deliver to the plaintiff the note and second mortgage for $3,000 described in the opinion. The defendant appealed.

M.L. Orlov, for the defendant. H.M. Ehrlich, for the plaintiff.

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 a 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 $15,000 (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...