Greenburg v. Bopp

• Decision Date: 26 February 1925
• Citation: 251 Mass. 433
• Parties: MICHAEL GREENBURG v. KATHERINE BOPP, executrix.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

251 Mass. 433

MICHAEL GREENBURG v. KATHERINE BOPP, executrix.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1925

January 21, 1925.

Present: RUGG, C.

J., BRALEY, CROSBY PIERCE, & CARROLL, JJ.

Assignment, Of lease. Contract, Consideration, Construction, Under seal.

A lessor and a lessee in a lease of real estate in which the lessee agreed to "assume and pay upon these premises all tax assessments and betterment assessments however laid or levied during the entire term of this lease," made a contract in writing and under seal, dated the day following that of the lease, in which it was recited that the lease had been made and that "said . . . [lessee] agrees to pay to the said . . . [the person named as lessor in the lease] the sum of" $300 annually for a certain period, and there also were stipulations for the ceasing of that obligation if the parties entered into a certain partnership and if certain federal income taxes were "abolished." The lessor assigned to a third party "all and whatever sum or sums of money now due and coming due to me from" the lessee using his name, "under the terms of a certain lease between us," giving the date of the lease. In an action for a payment which, it was alleged, came due, after the assignment, under the contract following the lease, it was held, that

(1) The contract and the lease were separate and distinct; (2) The assignment did not include the contract in suit;

(3) The contract being under seal, a consideration was presumed sufficient to support it as binding;

(4) A finding for the plaintiff was warranted.

CONTRACT upon a contract in writing and under seal dated September 2, 1920 whereby the defendant's testator agreed to pay the plaintiff annually $300 in lieu of federal income taxes "on the amount reserved in" a certain lease by the plaintiff to the defendant's testator dated the previous day. Writ in the Municipal Court of the City of Boston dated November 13, 1923.

Material provisions of the contract of September 2, 1920, of the lease of September 1, 1920, and of a certain assignment by the plaintiff to one Isadore Greenburg, are described in the opinion.

It appeared that the assignment was dated July 10, 1922, and that a copy of it was sent by the plaintiff to the defendant's testator on July 12, 1922, with a letter reading as follows: "Enclosed please find copy of assignment made by me to my brother, Isadore Greenburg, of all monies which are now due or which may hereafter become due under the terms of the lease to you from me on premises corner Boulevard and Shirley Ave., and you will therefore make all such payments to him in the future as may be due according to the terms of said lease, and his receipt shall be sufficient therefor."

At the close of the evidence at the trial in the Municipal Court, the defendant asked for the following rulings:

"1. Upon all the evidence the plaintiff is not entitled to recover. "2. Upon all the evidence there was a failure of consideration.

"3. The contract sued upon is predicated upon the absolute understanding that the plaintiff was to remain as lessor to the defendant.

"4. There was no consideration for the contract declared upon. "5. Upon all the evidence the plaintiff waived all the provisions of the contract sued upon, upon assigning his interest in the lease which constitutes an integral part of the contract."

The rulings were refused. The judge found for the plaintiff in the sum of $300 and reported the case to the Appellate Division, who ordered the report dismissed.

The case was submitted on briefs. S.L. Bailen, R.B. Brooks, & W.J. Kenney, for the defendant.

W. Hirsh, for the plaintiff.

CARROLL, J.

The plaintiff and the defendant's testator entered into a written agreement dated September 2, 1920. It in substance provided that whereas the plaintiff had executed a lease to Louis Bopp, the defendant's testator, of certain real estate, "and whereas said Louis Bopp has agreed to pay the sum of three hundred ($300) dollars per annum during the term of said lease in lieu of Federal Income Taxes on the amount reserved on the said lease . . . the said Louis Bopp agrees to pay to the said Michael Greenburg the sum of three hundred ($300) dollars" on September 1 of each year until 1935 beginning September 1, 1921. It was stipulated that in case the federal income taxes "on...