Freelander v. G. & K. Realty Corp.

• Decision Date: 12 May 1970
• Citation: 357 Mass. 512,258 N.E.2d 786
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: I. Robert FREELANDER et al., trustees, v. G. & K. REALTY CORPORATION.

Page 786

258 N.E.2d 786

357 Mass. 512

I. Robert FREELANDER et al., trustees, v. G. & K. REALTY CORPORATION.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Feb. 3, 1970.

Decided May 12, 1970.

Walter J. Griffin, Worcester (Sumner Silver, Worcester, with him) for plaintiffs.

Matthew R. McCann, Worcester, for defendant.

Before WILKINS, C.J., and SPALDING, KIRK, SPIEGEL, and REARDON, JJ.

SPIEGEL, Justice.

The plaintiffs bring this bill for declaratory relief seeking, inter alia, a decree that they are entitled to deduct the sum of $10,000 from the outstanding balance of a purchase money mortgage owed the defendant. The trial judge made 'Findings of Fact, Rulings and Order for Decree.' A final decree was entered favorable to the defendant from which the plaintiffs appeal.

There is no dispute as to the material facts. ¹ On December 3, 1957, the plaintiffs entered into an agreement with the defendant to purchase a parcel of land and the building located thereon, known as building 'D.' The property, formerly part of a 'complex of buildings' known as Graton & Knight Co., was located in the city of Worcester. At the time the agreement was entered into the defendant was in the process of 'selling the buildings and various subdivided parcels to different small industries which were interested in purchasing factory space.'

Building 'D' contained no heating plant or boiler, and the agreement contained the following provisions relevant thereto: 'The Buyer agrees to buy from the Seller or its nominee and the Seller or its nominee agrees to furnish from the power plant, presently furnishing steam to said building, heat to 72 F. at a cost comparable to that charged by the average of any three (3) local steam suppliers, but said price in no event shall exceed $1.65 per 1,000 1bs. This arrangement shall remain in effect so long as steam is supplied in a satisfactory manner. If in the event steam is not supplied as aforesaid by Seller or its successors or assigns to the Power Plant, so-called, during the next ten (10) years and it is so determined by a qualified heat engineer, the Buyer shall have the right to install a heating plant and the Seller will guarantee to pay half of the cost of said installation with a maximum liability of Ten Thousand ($10,000) Dollars. The Seller shall pay its share of said installation by deducting the said sum from the aforementioned note and mortgage. The Seller represents that a power and steam company is being formed which may supply electricity at a rate of not in excess of commercial electric rates, and the company has agreed to supply any customer in the building. The same company shall supply steam at prevailing commercial rates determined by the average charge by any three (3) local steam suppliers but not exceeding $1.65 per 1,000 lbs. and it is represented that the said power and steam company has agreed not to terminate its agreement to furnish steam except after giving six (6) months notice in writing unless failure is caused by acts or accidents beyond the control of said power plant. If, however, it does so and Buyer is obliged to install its own heating plant, then the provisions * * * hereof shall apply and such provisions shall represent the maximum of the liability assumed by the Seller.'

On May 2, 1958, 'a deed was executed and delivered from * * * (the defendant) to the plaintiffs' containing the following provision: 'The Grantor, its successors and assigns, agrees to furnish and the Grantee, its successors and assigns, agrees to buy from the Power Plant presently furnishing steam to said building, heat to 72 F at a cost comparable to that charged by the average of any three local steam suppliers, but said price in no event shall exceed $1.65 per 1,000 pounds. This arrangement shall remain in effect so long as steam is supplied in a satisfactory manner. In the event steam is not supplied as aforesaid by the Grantor, or its successors and assigns, during 10 years from the date of this deed, and it is so determined by a qualified heat engineer, the Grantee, its successors and assigns, shall have the right to install a heating plant and the Grantor, its successors and assigns, covenant...