Kavolsky v. Kaufman

• Decision Date: 29 November 1930
• Citation: 173 N.E. 499,273 Mass. 418
• Parties: KAVOLSKY v. KAUFMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

273 Mass. 418

173 N.E. 499

KAVOLSKY

v.KAUFMAN.

Supreme Judicial Court of Massachusetts, Bristol.

Nov. 29, 1930.

Exceptions from Superior Court, Bristol County; Dillon, Judge.

Action by Louis Kavolsky against Jacob Kaufman. Verdict for defendant, and plaintiff brings exceptions.

Exceptions overruled.L. E. Wood, F. Kavolsky, and G. L. Sisson, all of Fall River, for plaintiff.

A. S. Phillips, of Fall River, for defendant.

PIERCE, J.

This is an action of contract brought to recover a balance alleged to be due on two promissory notes. The defendant's answer was a general denial, payment and a special answer ‘that the plaintiff held, as security for the notes severally declared upon, two certain mortgage conveyances of real estate; that he sold the property on foreclosure and received or ought to have received an amount of money sufficient to pay the notes in question; that if a lesser amount was in fact realized, the plaintiff did not exercise that ordinary care and diligence and perform the duties in the conduct of the foreclosure sale which devolved upon the mortgagee on account of the relationship of the parties.’

At the trial it was agreed that the amount of indebtedness due on the mortgage notes was $11,015 at the date of the foreclosure sale. It was admitted that at the date when the foreclosure took place there was a default in the payment of the two notes, and that the plaintiff in this action had the right to foreclose the mortgage. It was agreed by the defendant's counsel that the legality of the sale, so far as conforming to the legal requirements goes, was complied with. At the close of the evidence the plaintiff filed motions for directed verdicts in his favor on the first and second counts of his declaration. These motions were denied and the plaintiff excepted. The plaintiff also requested, and the judge refused, subject to the exceptions of the plaintiff, the following rulings: (1) ‘Upon all the evidence the plaintiff is entitled to recover on the first count’; (2) ‘Upon all the evidence the plaintiff is entitled to recover on the second count’; (3) ‘The foreclosure sale of the premises covered by the mortgage from Jacob Kaufman to Louis Kavolsky dated February 15, 1923, recorded in Fall River District Registry book 314, page 91, was a fair and proper sale’; and (4) ‘In the conduct of the foreclosure sale the plaintiff exercised ordinary care and diligence.’ The jury took a view of the premises and after a charge by the judge, which was not excepted to, found for the defendant. The case is before this court on the plaintiff's exceptions.

The facts which were warranted by the evidence and could have been found by the jury upon the issue raised by the defendant's special answer, supra, are as follows: The defendant bought the property of the plaintiff about six or seven years before the trial for $15,000. Thereafter the defendant Kaufman improved it so that at the time of the foreclosure sale it had cost him $17,500. The property consisted of a three-tenement brick house. The brick building could not be built under $7,000 to $8,000, and before the foreclosure sale the defendant Kaufman had transferred the property to his son. The advertisement of the foreclosure sale, which was held on April 12, 1929, stated that the ‘terms' of sale would be announced ‘at the time of the sale.’ The day of sale was rainy. Twelve or fifteen people gathered on the premises, in an archway, and the plaintiff's son announced before the building began, in the hearing of everybody, ‘Remember gentlemen, this sale is to take place now, and anybody that bids must have $1,000 in cash or a certified check and pay the balance in ten days. I want every man here to feel or I want to feel that he is a bona fide bidder, and those are the terms, and if you haven't got the money or you cannot arrange to meet those terms, don't bid. Or if you do bid and then you are asked for the money and you haven't got it, the sale will immediately start over again.’ The auctioneer made the same announcement. The bidding began; one Bernstein bid $8,000 or a little higher and then stopped. One Kandler, who came from Taunton, Massachusetts, and the plaintiff's son then bid, the one against the other, until Kandler bid $9,000-the highest bid-and the auctioneer struck off the property to him.

As to what then took place the jury could find on the reported evidence that Kandler, in response to the auctioneer's request for the money, offered $500 in cash and stated that he would give a $500 check. The plaintiff's son said, ‘No, I want the whole $1,000 cash,’ and Kandler replied, ‘I have got the money in the bank’; or, they could find on other...