Goshien v. Chavenson

• Decision Date: 23 November 1927
• Citation: 158 N.E. 789,261 Mass. 403
• Parties: GOSHIEN v. CHAVENSON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

261 Mass. 403

158 N.E. 789

GOSHIEN

v.CHAVENSON et al.

Supreme Judicial Court of Massachusetts, Bristol.

Nov. 23, 1927.

Appeal from Superior Court, Bristol County.

Action by Milton H. Goshien against Aaron Chavenson and others. Decree for plaintiff, and defendants appeal. Affirmed.

S. Rosenberg and J. B. Riddock, both of New Bedford, for appellants.

H. A. Lider, of New Bedford, for appellee.

CROSBY, J.

By an agreement in writing dated September 13, 1923, the plaintiff agreed to purchase and the defendants to sell certain real estate situated in Fairhaven. The plaintiff contends that the defendants have neglected and refused to carry out the agreement and brings this bill to rescind the same and to recover the sum paid by him on account thereof.

The presiding judge in the superior court found certain facts, made certain rulings of law, and ordered that the agreement be rescinded and that the defendants pay the plaintiff the sum of $1,659.65, together with interest and costs. A final decree was entered in accordance with the order, from which the defendants appealed.

[1] A commissioner was duly appointed to report the evidence under equity rule 29, and while he certifies that the evidence reported is an accurate report of the same, it appears in several instances in the transcript that exhibits, including letters and other documentary evidence, were admitted at the hearing before the court but are not embodied in the report, nor do they appear elsewhere in the record. Accordingly the contents of such exhibits are not before us, although they may have been material in passing upon the issues involved. It was the duty of the appellant to see that the record included all that was necessary to determine whether the rulings made and the order for a final decree were or were not erroneous. It was said in Romanausky v. Skutulas, 258 Mass. 190, at page 194, 154 N. E. 856, 858:

‘It is the general equity practice and procedure established by statute and by practice that the entire evidence must be reported on appeal when it is desired to have this court revise a finding made by a trial judge upon oral testimony. That is the only way in which this court can be put in the position of the trial judge and enabled to review his conclusions as to findings of fact.'

See Lindsey v. Bird, 193 Mass. 200, 202, 79 N. E. 263;Moss v. Old Colony Trust Co., 246 Mass. 139, 144, 140 N. E. 803.

The agreement provides in part as follows:

‘Said premises are to be conveyed when paid for as herein provided by a good and sufficient warranty deed of the party of the first part in which the wife shall properly join, conveying a good and clear title to the same free from all incumbrances except as otherwise herein mentioned. And for said premises the party of the second part is to pay the sum of six thousand six hundred and fifty ($6,650) dollars, payable eight hundred ($800) dollars in cash upon the delivery of this agreement and the balance of $5,850 as follows: Interest shall be paid on $3,500 as if it were a first mortgage at the rate of 6% per annum, payable quarterly in advance and upon the sum of $2,350, at the rate of 8% per annum quarterly together with $50 every three months on the principal of $2,350. This shall continue for three years from date thereof: When balance of $2,350 shall be paid in cash to the sellers. The buyers agree to assume a first mortgage in a savings bank or co-operative bank for no less than $3,500 for a first mortgage within eighteen months from this date.'

[2] The principal controversy between the parties at the hearing before the trial judge was whether the plaintiff or the defendants were required to procure the first mortgage for $3,500, which the plaintiff agreed to assume, within eighteen months from the date...