Hindenlang v. Mahon

• Decision Date: 04 January 1917
• Citation: 114 N.E. 684,225 Mass. 445
• Parties: HINDENLANG et al. v. MAHON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

225 Mass. 445

114 N.E. 684

HINDENLANG et al.

v.MAHON.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 4, 1917.

Appeal from Municipal Court of Boston, Appellate Division.

Action by Herman Hindenlang and others against Peter J. Mahon, begun in the municipal court of the city of Boston. A report of the judge to the appellate division, after rulings for defendant, was dismissed by the appellate division, and plaintiffs appeal. Order dismissing the report affirmed.

McDonald & Graham, of Boston, for appellants.

Michael F. O'Malley, of Boston, for appellee.

CROSBY, J.

This is an action of contract to recover an unpaid balance of the purchase price of certain real estate, under a written agreement for the sale thereof by the plaintiffs to the defendant. The answer as amended is a general denial, payment, that the contract was made on Sunday, and the statute of frauds.

The case comes to this court upon an appeal from an order dismissing a report made by the appellate division of the municipal court of the city of Boston. The report recites that:

‘On Sunday, July 25, 1915, the defendant and Arthur Hindenlang, one of the plaintiffs, he having authority to negotiate sales of land, but not to execute the final written agreement for such sales, met on the land and concluded an oral bargain. It did not appear that the defendant had any notice of the above limitation upon the authority of said Arthur Hindenlang, unless the same appears from the form of said agreement.’

It also appears from the report that $5 was paid upon the purchase price in accordance with the oral agreement; that the written agreement was prepared in duplicate; that both copies were signed by the defendant; that Arthur Hindenlang signed as a witness and both copies were delivered to him; that on the following day [Monday] Arthur delivered them to the plaintiff Herman, who signed and sealed them on behalf of the plaintiffs, and a day or two afterwards one of the copies was sent by mail to the defendant.

At the close of the evidence the court refused to rule as requested by the plaintiffs, that the contract was not executed on the Lord's day and was not void; and found for the defendant. The court also made the following finding of facts:

‘I find that so far as the acts by the defendant were concerned, everything was done on Sunday, and that he intended and supposed the making of the contract in suit to be then concluded, and that he did nothing to affirm or adopt it on a secular day. I find that the indenture was not finally executed by the plaintiff's until Monday.’

[1][2] The following question was put to the defendant on direct examination:

‘When you gave that paper with your signature thereon to Arthur Hindenlang, did you intend to deliver it as your contract?’

This question was properly admitted. The answer was:

‘I understood I was to get the contract then.’

The plaintiffs did not move to strike out the answer. While oral evidence to vary or modify the contract was inadmissible, still the defendant was entitled to show at what time it was made. It was competent to show...