Glovsky v. Holly Point Estates, Inc.

• Decision Date: 01 April 1968
• Citation: Glovsky v. Holly Point Estates, Inc., 236 N.E.2d 202, 354 Mass. 94 (Mass. 1968)
• Parties: Charles Joel GLOVSKY v. HOLLY POINT ESTATES, INC., et al. (and a companion case 1 ).
• Court: Supreme Judicial Court of Massachusetts

Page 202

236 N.E.2d 202

354 Mass. 94

Charles Joel GLOVSKY

v.

HOLLY POINT ESTATES, INC., et al. (and a companion case¹).

Supreme Judicial Court of Massachusetts, Barnstable.

Argued Jan. 5, 1968.

Decided April 1, 1968.

Robert M. Bonin, Boston, for Joel Glovsky.

Avram G. Hammer, Boston, for Holly Point Estates, Inc., and others.

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

REARDON, Justice.

Glovsky brought a bill against Holly Point Estates, Inc. (Holly), its president, Benjamin Kepnes, and its treasurer, Hyman Hirsch, seeking transfer to him of a lot numbered 73 in a large real estate development in the town of Barnstable, or damages in the alternative. Holly brought an action against Glovsky seeking damages in one count of a declaration for breach of contract, and in a second for a dishonored check in the sum of $45,000. The two matters were consolidated for trial and were heard by a judge of the Superior Court who made findings of fact and rulings of law.

In the suit in equity the judge entered a final decree ordering Holly to pay Glovsky the sum of $5,000, plus interest, from the date of the complaint, denying Glovsky's claim to a deed of lot 73, and ordering him to remove from that lot a structure erected thereon by him. All parties appealed from the final decree. In the action at law the judge found for Glovsky. Holly alleged two exceptions in the law action and comes here on a substitute outline bill of exceptions.

Before us it was stipulated that Glovsky has moved the structure formerly on lot 73 and that Holly has, with the exception of that lot, conveyed away the entire tract of which it was a part.

We have before us a full transcript of the evidence and a report of material facts for which the judge adopted his voluntary findings and in which he states, 'My findings of facts apply to the law action and the equity action.' In the suit in equity we thus apply the customary standards of review. Willett v. Willett, 333 Mass. 323, 324, 130 N.E.2d 582; Sulmonetti v. Hayes, 347 Mass. 390, 391, 198 N.E.2d 297. The findings of the judge in summary are as follows.

Holly, a Massachusetts corporation, owned a large tract of subdivided land in Barnstable contining 165 lots and fronting on three great ponds. Additional lots in the subdivision had been sold in previous years and twenty houses had been built on the tract, including one built by Glovsky. Following some negotiations in the spring of 1964, on or about June 13, 1964, Glovsky and Holly agreed orally on a price of $280,000 for the lots, and subsequently an agreement of sale was drafted by Holly's attorney stipulating certain price ranges for different lots with a provision that waterfront lots should not be conveyed by the buyer for prices less 'than acceptable to the seller.' The purchase price was to be paid in instalments, $5,000 upon execution of the agreement, $45,000 within ten days thereafter, and the balance within five years from the date of execution. Kepnes and Hirsch signed the agreement on behalf of Holly. Glovsky never did sign the agreement. However, on July 11, 1964, Glovsky gave Holly a check for $5,000 which was cashed four days later. Several weeks thereafter Glovsky sought a deed for lot 73 from Holly but was advised it would not be forthcoming until he signed the agreement. Through a succession of lawyers Glovsky both sought changes in the agreement and continued various phases of the negotiations during which Kepnes and Hirsch gave advice to Glovsky on methods of marketing the lots. On August 1, 1964, a permit issued to Glovsky for the construction of a model home on lot 73. Some $10,000 was expended on this construction which ceased on August 31, 1964. Earlier, on August 7, 1964, Glovsky gave Holly a second check in the sum of $45,000 postdated August 15, 1964, stating upon its delivery that it was to be held until the agreement was signed. His account in the bank on which the check was drawn was 'substantially inadequate to cover the payment of this check' from August 7 until August 15, when Holly's attorney presented the check for payment at the bank and was refused payment because of 'insufficient funds.' There followed on August 31, 1964, a letter from Holly's attorney to Glovsky alleging a breach of the agreement signed by Kepnes and Hirsch and requesting Glovsky to remove the building on lot 73.

The judge concluded that Holly and its officers never agreed to convey lot 73 'as a separate transfer from the entire 165 lots, (that) (t)he check for $5,000.00 * * * was a down payment on the price of the whole tract,' that the permission given Glovsky to erect a model home was in furtherance of the project and upon 'the assumption that the written agreement would be signed by the parties,' that the receipt of the check for $45,000 was at a time when Holly judged 'Glovsky's interest as a purchaser was sustained and sincere,' that Glovsky's loss, such as it was, was caused by 'his unwise eagerness to 'set up shop' before executing the agreement or his inability to arrange...