Gordon v. Harris
| Decision Date | 04 May 1935 |
| Citation | 290 Mass. 482,195 N.E. 744 |
| Parties | GORDON v. HARRIS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from Superior Court, Suffolk County; Whiting Judge.
Action of contract by William Gordon against Emma L. Harris executrix of the will of her deceased husband, where there was a finding for the plaintiff in the sum of $6,595.81, and the defendant saved exceptions.
Exceptions overruled.
J. Kruger, of Boston, for plaintiff.
H. B. Ehrmann, of Boston, for defendant.
This is an action against the defendant as the executrix of the will of her deceased husband, who was an indorser of a note for $10,000 secured by a second mortgage of real estate, to recover a deficiency after a forelclosure sale. The note was actually owned by one Pinanski and one Green who assigned it to the plaintiff for the purpose of bringing this action. The defendant's testator owned a one-third interest in the equity in the mortgaged real estate, the owners of the other two thirds being one Goldfine and one Carmen. The case was tried on certain facts agreed upon at the trial and on oral testimony. The trial judge in the superior court sitting without jury found for the plaintiff in the sum of $6,595.81.
At a foreclosure sale on July 18, 1930, the property was sold for $9,325, subject to a first mortgage of $35,000 and unpaid taxes, to Goldfine and Carmen, the owners of a two-thirds thirds interest in the equity. They, however, refused to go through with the sale and forfeited a deposit of $500 which has here been credited in determining the amount now due on the note. There afterwards the property was again advertised for sale at foreclosure, the auction was held on August 29, 1930, and the property sold for $5,000 subject to the first mortgage of $35,000 and unpaid taxes. The purchasers were Pinanski and Green, the real owners of the note and mortgage. The foreclosure deed to a straw holder representing them was delivered on September 8, 1930, and on September 16, 1930, he representing the purchasers entered into an agreement with one Levine to sell him the property for $10,000 subject to the first mortgage and to adjustments for taxes and insurance. On December 17, 1930, a conveyance was made to him with adjustments computed as of that date.
At the trial the defendant admitted that both foreclosure sales were duly advertised, that she knew in advance that they were to be held, that the note was overdue at the time of the foreclosures and that taxes, water rates and interest were due and unpaid. The bill of exceptions states that at the trial the ‘ defendant waived all defenses to the suit except the defense based upon the conduct of the actual owners of the note in connection with the foreclosure of the property on August 29, 1930,’ and that ‘ the defense was based entirely upon the claim that pertinent evidence established want of good faith and negligence on the part of the owners of the note.’
The defendant in her answer pleaded in defense to the action that the foreclosure sale was not properly conducted and that the owners of the note did not act in good faith and with reasonable diligence in the protection of the rights of the defendant. The burden of proof on the issues thus raised was on the defendant. McCarthy v. Simon, 247 Mass. 514, 521, 142 N.E. 806. Since the finding was for the plaintiff, the defendant's contention must necessarily be that on facts either agreed upon or appearing in testimony by which the plaintiff is bound, the trial judge was as matter of law obliged to find that the defendant had sustained the burden of proof on the issues raised by the answer.
As to what took place at the time of the foreclosure sale there was testimony from the auctioneer, from Green, one of the owners of the note, and from an attorney representing the owners all of these witnesses having been called by the plaintiff. The auctioneer testified that the sale was protracted by delays after the bids were made, while two groups of bidders conferred together privately, that this seemed ‘ unusual’ and that the witness did not know ‘ what it was about, it was ridiculous.’ If we should assume that on his testimony and justifiable inferences therefrom it might have been found that the sale was improperly conducted to the prejudice of the rights of the defendant, still the judge was not obliged to make that finding. The plaintiff although the called the auctioneer as a witness was not bound by his testimony. Hill v. West End Street Railway Co., 158 Mass. 458, 33 N.E. 582; Marsh v. Beraldi, 260 Mass. 225, 230, 157 N.E. 347. The judge might not have believed it. If the judge accepted as true testimony given by the attorney of the owners of the note he had warrant for finding that the delays and...
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