Glidden v. Massachusetts Hosp. Life Ins. Co.

• Decision Date: 03 March 1905
• Citation: Glidden v. Massachusetts Hosp. Life Ins. Co., 187 Mass. 538, 73 N.E. 538 (Mass. 1905)
• Parties: GLIDDEN v. MASSACHUSETTS HOSPITAL LIFE INS. CO.
• Court: Supreme Judicial Court of Massachusetts

187 Mass. 538

73 N.E. 538

GLIDDEN v. MASSACHUSETTS HOSPITAL LIFE INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 3, 1905

COUNSEL

Sherman L. Whipple and David A. Ellis, for plaintiff.

Choate Hall & Stewart, for defendant.

OPINION

KNOWLTON C.J.

This is an action of contract to recover the amount of an order accepted by the defendant. The order was dated Boston, July 23, 1901, and signed by one Vinal, and addressed to the defendant, requesting the payment to the plaintiff of the sum of $5,500 out of the first payment to which Vinal, should become entitled on account of three mortgages given on that day to the defendant. It referred to the payment under the mortgages as $11,000 to be received when the first floor of the building to be erected on each lot should be in. On the same day the defendant accepted the order in these words: 'Boston, July 23, 1901. The Massachusetts Hospital Life Insurance Company acknowledges the receipt of the foregoing order, and will make the payment to said Glidden therein called for, provided said Vinal becomes entitled to the first payment under said mortgages, in accordance with the terms of his obligation therefor, dated July 1, 1901. Massachusetts Hospital Life Insurance Company by George A. Sawyer, Attorney.' At the end of the trial the judge ruled that there was no evidence of the performance of the condition of the acceptance of the order, or of its waiver, sufficient to warrant the submission of the case to the jury. The only question before us is whether this ruling was correct.

Vinal had applied to the defendant for a mortgage loan of $20,000 upon each of three lots of land, on each of which he was about to build a house. These were to be building loans; that is, the defendant was to furnish the money in installments from time to time, according to the progress of the work, as the buildings were erected. By the terms of the contract between the parties in the application, the stipulated payments were to be made by the defendant to Vinal upon each mortgage, at the times agreed, 'provided the title and workmanship are satisfactory to the lender, and no liens exist having priority to the mortgage, of which George A Sawyer's certificate shall be conclusive.' The mortgages and accompanying notes were given by Vinal to the defendant, but the first payment by the defendant on account of the loans was to await the construction of the building to the first floor, and the performance of the other conditions as to title and liens, to the satisfaction of Mr. Sawyer, so that he might give his certificate. This condition was never performed. When the notes and mortgages were given by Vinal to the defendant there were four prior mortgages outstanding on different parts of the property, together amounting to more than $24,000, and the taxes for the year 1901 were not paid. On November 29, 1901, the defendant having been notified that the first floors of the houses were on and the walls up, Sawyer, representing the defendant, met Vinal, the plaintiff, and a representative of some of the mortgagees, at the registry of deeds, with four checks from the defendant, for different sums, payable to his own order, which he intended to turn over to Vinal, to be turned over at the same time for the discharge of incumbrances if the conditions should seem to warrant it. At the registry he ran down Vinal's title in the usual way, from the time of his former examination, and examined the list of bankrupts which is posted there daily. He found that a petition in bankruptcy had been filed against Vinal two days before. He then...