Herrin v. Bouzianis
| Decision Date | 01 July 1981 |
| Citation | 422 N.E.2d 488,12 Mass.App.Ct. 904 |
| Parties | Quinton R. HERRIN, Jr. v. George BOUZIANIS et al. 1 |
| Court | Appeals Court of Massachusetts |
James S. Gallagher, Brookline, for plaintiff.
Norman M. Shack, Lawrence, for defendants.
Before ARMSTRONG, CUTTER and BROWN, JJ.
RESCRIPT.
Herrin (the buyer) seeks specific performance of an agreement of the defendants (the vendors) to sell to him real estate in Amesbury for $188,800. The property was subject to a first mortgage held by a cooperative bank bearing interest at nine and one-half percent. A deposit of $5,000 was paid on the execution of the agreement. A further sum of $10,000 was to be paid on delivery of the deed. A second mortgage bearing interest at fifteen percent was to be given by the buyer to the vendors in an amount equal to $188,800 less the aggregate of (a) the amount of the first mortgage, plus (b) the $5,000 deposit, and (c) plus $10,000 to be paid on the delivery of the deed.
The purchase and sale agreement provided, when first drawn, that the real estate would be conveyed subject to the cooperative bank's first mortgage (Emphasis supplied.) This provision was amended by all the parties to change the emphasized words to read "not to exceed 93/4%," so that the buyer in effect was undertaking to endeavor to obtain from the bank or retain first mortgage financing at a rate not exceeding nine and three-quarters percent with the provision that he would receive a refund of his deposit if he failed to do so.
The case was referred to a master. The facts are here stated on the basis of our interpretation of his somewhat confusing report, which was adopted. Judgment was entered for the vendors. The buyer appealed.
The master (among other matters) found (1) that the vendors did not request that they be relieved of liability on the first mortgage note to be assumed by the buyer and the buyer made no request of the cooperative bank that the vendors be thus relieved; (2) that the cooperative bank refused to allow the buyer to "assume" the first mortgage at less than a ten percent rate of interest and had not approved a release of the vendors' obligation on the first mortgage note; and (3) that the provision of the agreement which "conditioned the (b)uyer's obligation to purchase on his being able to assume ... (the) existing mortgage at 93/4% ... was a condition protecting the" buyer. The master concluded that the buyer had "attempted to purchase the real estate by entering into a new obligation ... increasing the" existing first mortgage interest rate to ten percent, "without releasing the ... (vendors) from their obligation to pay the" mortgage debt "in case of default." This he regarded as a material change of the purchase and sale...
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...Co. v. Gabriel, 334 Mass. at 268-270, 134 N.E.2d 901; Richardson v. Parker, 353 Mass. 764, 233 N.E.2d 196; Herrin v. Bouzianis, 12 Mass.App.Ct. 904, 422 N.E.2d 488 (1981) (specific performance denied where purchaser had not satisfied condition); Park, Real Estate Law §§ 964 & 965 (1981 & 3.......
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...be able to tender the full purchase price. See deFreitas v. Cote, 342 Mass. at 477, 174 N.E.2d 371. Contrast Herrin v. Bouzianis, 12 Mass.App.Ct. 904, 906, 422 N.E.2d 488 (1981). If the seller is reasonably dissatisfied with the buyer's financial arrangements and chooses not to go forward w......
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