Larose v. Porter

• Citation: 177 A. 297
• Parties: LAROSE v. PORTER.
• Decision Date: 05 February 1935
• Court: Supreme Court of New Hampshire

177 A. 297

LAROSE

v. PORTER.

Supreme Court of New Hampshire. Hillsborough.

Feb. 5, 1935.

Transferred from Superior Court, Hillsborough County; Young, Judge.

Action by Joseph Larose against Philip Porter. Verdict for plaintiff, and defendant's exceptions were transferred.

Judgment on the verdict.

Assumpsit, for breach of an oral agreement to assist the plaintiff in commencing business as a member of an association of retail grocers known as the Clover Farm Stores. Trial by jury, and verdict for the plaintiff.

Prior to May 4, 1930, the plaintiff was an independent retail grocer who carried on his business in a store which he owned on Haines street, in Nashua. The defendant was, and now is, a wholesale grocer in that city dealing in a brand of groceries known as the Clover Farm Brand, which he supplies to members of a retail grocer's association known as the Clover Farm Stores.

The parties began doing business with one another in 1928, although the plaintiff was not then a member of the association, and did not buy exclusively from the defendant About the first of May, 1930, the defendant, learning that the plaintiff was about to join a rival retail grocer's association known as the Nashua Wholesale Grocers, went to the plaintiff and induced him to join the defendant's association. Immediately thereafter certain decorative changes were begun on the plaintiff's store to make it conform in appea rance to other Clover Farm Stores, but, on May 4, 1930, before these changes were completed and before the plaintiff had actually joined the association, his store was completely destroyed by fire.

Soon after the fire, the defendant, in consideration of the plaintiff's promise to join the Clover Farm Stores and purchase exclusively from him, agreed to assist the plaintiff in re-establishing his business at another location. The first location selected by the plaintiff for his new store was not acceptable to the defendant because of its proximity to the store of another member of the association, so the plaintiff found another location where the defendant could establish a Clover Farm Store without breaking any agreement which he had previously made with any other member of his association. The plaintiff purchased this store, taking title in the name of his wife, and gave a mortgage thereon to the defendant, who supplied all of the purchase money. The defendant took title as mortgagee in the name of his wife.

According to the terms of this mortgage, which was executed on July 29, 1930, the plaintiff was to expend not less than $1,500 of his own money in improvements on the premises, and to pay stated sums monthly on account of principal and interest until the indebtedness should be paid. The plaintiff immediately began to make repairs, did some manual work himself, and expended his own money on the premises in excess of the amount required by the mortgage.

About the time when the first monthly payment fell due, the plaintiff testified that he told the defendant that he needed all the cash he had for repairs on the premises, and asked if he could use his money in that way rather than to pay the sums due on the mortgage, and, furthermore, that he proposed to mortgage the property to a bank when the building was completed and would then pay the defendant's mortgage in full. To this arrangement the defendant said, "all right."

The defendant denied any such conversation or agreement.

In November or December, 1930, the repairs not being completed, the defendant established another Clover Farm Store in close proximity to the plaintiff's store which the plaintiff contends was a violation of their agreement.

On March 6, 1931, no payments having been made on the mortgage, and several attachments having been made on the property by the contractor and others who had supplied labor or materials in repairing it. the defendant assigned the mortgage to a friend who immediately began to foreclose. The foreclosure proceedings were completed and the property sold on May 9, 1931. At the time of the foreclosure the repairs were almost, but not quite, fully completed.

Further facts appear in the opinion.

Young, J., transferred the defendant's exceptions to the denial of his motions for a nonsuit and for a directed verdict and to the failure to grant his motion to set the verdict aside as against the law, the evidence, and the weight of the evidence.

Wason & Guertin, of Nashua (A. A. Guertin, of Nashua, orally), for plaintiff.

Lucier & Dowd, of Nashua (K. E. Dowd, of Nashua, orally), for defendant.

WOODBURY, Justice.

The defendant contends that the action is improperly brought because the cause of action, if any exists, belongs not to the plaintiff, but to his wife, in whose name title to the property was taken. This contention is without merit All negotiations and agreements were made by the parties to this action, and the only reasonable inference to be drawn from all the evidence is that their wives were merely nominal parties to the mortgage. At least, the situation was so treated by the trial court without objection. He charged the jury that: "The failure of the plaintiff to pay in accordance with the mortgage would prevent his recovery." The necessary implication from this is that the parties to this action were the real parties to the mortgage. No objection or exception was taken to the charge, and so the foregoing became the law of the trial to which it is now too late to object.

The defendant's next contention is that the plaintiff's testimony relating to the oral agreement to permit the plaintiff to use his money for repairs to the property, rather than for the purpose of making the monthly payments called for by the mortgage, is legally incompetent to excuse him from making the payments according to the terms of the mortgage; and, consequently, the plaintiff, having first broken the contract, may not complain if the defendant refuses to continue to perform his obligations thereunder. This contention is based upon the proposition that, since the obligation to make the monthly payments is contained in an instrument under seal, it can be...