Governor Apartments, Inc. v. Carney
| Decision Date | 03 April 1961 |
| Citation | 342 Mass. 351,173 N.E.2d 287 |
| Parties | GOVERNOR APARTMENTS, INC. v. Hugh A. CARNEY, Trustee. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
William J. Carr, Boston, for defendant.
S. Myron Klarfeld, Boston, for plaintiff.
Before WILKINS, C. J., and WHITTEMORE, CUTTER, KIRK and SPIEGEL, J.J.
This was an action in the Municipal Court of the City of Boston to recover money paid under compulsion. The trial judge found for the defendant. The Appellate Division vacated the finding and ordered a finding for the plaintiff in the amount claimed, $597.65.
The evidence set out in the report tended to show the following facts:
The defendant, holding a mortgage on property of the plaintiff in the Brighton district of Boston, brought a suit in the Superior Court for permission to foreclose on the ground that alterations had been made which constituted waste, and, on or about July 1, 1958, obtained a decree authorizing foreclosure, from which decree the plaintiff appealed. The plaintiff and the defendant then negotiated for the discharge of the mortgage, and on or about October 16, 1958, the mortgage being then 'in the amount of $93,000,' the plaintiff paid the defendant $10,000, and the parties agreed in a writing, drafted in the hand of the defendant, as follows:
'Boston, Massachusetts
'October 16, 1958.
'Receipt is hereby acknowledged of ten thousand ($10,000.-) dollars from Maurice Gordon to be applied to the present balance of a mortgage dated June 1, 1956 running from Maurice Reubens to to [sic] Carney Newman Trust, Hugh A. Carney Trustee, covering the following premises, 162 and 164 Allston Street and 186, 190, 192 and 194 Kelton Street, in said Boston, said mortgage is recorded in Suffolk Registry of Deeds.
'In the event that within thirty days from the date hereof the said Maurice Gordon pays to the Carney Newman Trust, Hugh A. Carney Trustee the further sum of ($77,500.)--seventy seven thousand five hundred dollars said mortgage is to be considered as fully paid and a discharge shall issue therefore [sic]. Otherwise the said balance shall be $83,000.00) eighty three thousand dollars after the within payment of ten thousand dollars ($10,000.-)
'Ten days of grace will be given on the above arrangement if required
'Accepted Governor Apartments by Maurice Gordon
Carney Newman Trust
Hugh A. Carney Trustee and not individually.'
Within the extended term of the agreement, the plaintiff, on December 3, 1958, presented to the defendant a check for $77,500, whereupon the defendant demanded interest to December 3, 1958, in the amount of $597.65. An argument ensued. The plaintiff's representative said that the defendant had previously agreed that there would be no additional charge for interest and that the plaintiff was to have the discharge upon payment of the stipulated sum. The defendant denied this and the argument finally reached the point at which, according to testimony for the plaintiff, the defendant said, 'If you do not pay this interest, I will foreclose.' The plaintiff's representative as a result made out his personal check for $597.65 and the defendant 'at the request of the plaintiff' wrote on a slip of paper, which showed the interest computations, the following: The plaintiff had obtained a replacement mortgage at a higher rate.
The judge, in a concluding statement, declared, 'In construing the agreement * * * I have considered it as limited in scope to principal on mortgage and in no manner affecting interest running up to the time of discharge.' Thus he limited the significance of his ruling that 'the defendant agreed to consider his mortgage as 'fully paid' and to issue a discharge therefrom upon the payment * * * of $87,500 within the time agreed upon,' and of his finding that the plaintiff paid $87,500 within the agreed time and that the defendant refused to issue a discharge.
The judge found that the defendant threatened to foreclose the mortgage and to demand $93,000 unless the interest payment was made. He also ruled that 'Upon the evidence, the plaintiff was compelled to pay the additional sum of $597.65 as interest in order to obtain a discharge of the mortgage * * * [and] the plaintiff did not voluntarily make a payment of $597.65 * * *.' He declined...
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