Linse v. O'Meara

• Decision Date: 14 January 1959
• Citation: 155 N.E.2d 448,338 Mass. 338
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: J. William LINSE et al. v. Henry J. O'MEARA et al.

Page 448

155 N.E.2d 448

338 Mass. 338

J. William LINSE et al. v. Henry J. O'MEARA et al.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Oct. 9, 1958.

Decided Jan. 14, 1959.

Edward M. Dangel, Boston (Leo E. Sherry, Max L. Glazer, Boston, with him), for plaintiffs.

Thomas F. Donnelly, Newton, for defendant O'Meara.

Simon Stein, Boston (Edward T. Cauley, Boston, with him), for defendants Cauley.

Before WILKINS, C. J., and RONAN, SPALDING, WHITTEMORE and CUTTER, JJ.

CUTTER, Justice.

This is a bill in equity by one Linse and his wife to obtain specific performance of a written agreement between the defendant O'Meara and the Linses for the sale to the plaintiffs of a parcel of land (hereinafter called the barn lot) on South Street, Needham. The bill alleged that the defendant Cauley, knowing of the agreement between O'Meara and the Linses, conspired with O'Meara to prevent the plaintiffs from acquiring the barn lot. Mrs. Cauley was also named as a defendant. A final decree was entered dismissing the bill as against Cauley and Mrs. Cauley and ordering O'Meara to repay to Linse a deposit of $500. The Linses have appealed.

1. A question arises with respect to the scope of the present appeal. It appears that, on April 8, 1957, one Keyes, a court stenographer, was dully designated to report the testimony, and that on April 9, 1957, one Browning also was designated. Keyes reported only the testimony on the first day of trial and then became sick. By some mistake, in the preparation of the record on appeal, the transcript of the twenty-nine pages of testimony taken by Keyes was not included in the record entered in this court, although the approximately three hundred pages of testimony taken by Browning were so included. This mistake took place despite the fact that the plaintiffs designated the whole transcript for inclusion in the record. The twenty-nine pages were obtained by counsel for the Linses from Keyes' stenographic notes, after Keyes' death. The defendants oppose the allowance of a motion by the plaintiffs to include in the record these twenty-nine pages which have been presented to us in support of the motion. These pages appear to be now relevant to the vital issue on this appeal (i. e. whether Mrs. Cauley was a bona fide purchaser) only for the purpose of eliminating any contention that all of the evidence is not before us.

Under G.L. c. 231, § 135 (as amended through St.1941, c. 187, § 1) the appealing party, rather than the clerk, has the duty to use 'reasonable diligence in procuring the transcript.' See Trade Mut. Liability Ins. Co. v. Peters, 291 Mass. 79, 84-85, 195 N.E. 900, 903. Despite the understandable confusion caused by the designation of two court stenographers, successively, to report the testimony, the plaintiffs' counsel should have made certain that the transcript filed with the clerk was complete. See Hubbard v. Southbridge Natl. Bank, 297 Mass. 17, 19, 8 N.E.2d 351. See also Maraghey v. Tarpey, 334 Mass. 157, 159, 134 N.E.2d 440. The trial judge and the parties, however, obviously supposed that the whole transcript had been filed with the clerk as contemplated by Rule 2(A) of the Rules for the Regulation of Practice before the Full Court (1952), 328 Mass. 693. See also Rule 76 of the Superior Court (1954) as amended April 26, 1957. Because this had not in fact been done, it would seem that any notice given by the clerk under Rule 2(A) was premature with the consequence that the entry of the present appeal in this court was likewise premature. No motion to dismiss the appeal for unreasonable delay in filing the complete transcript was filed in the Superior Court under G.L. c. 231, § 133 (as amended through St.1933, c. 300, § 2). At this stage of the proceedings and under the somewhat unusual circumstances here present, we do not feel that we should limit review of the case to less than all the evidence. ¹ As we view the case, further consideration of the evidence by the trial judge and further findings by him are necessary in any event. Accordingly we have considered at this time the questions which would have been presented by an appeal clearly one upon all the evidence, so that the trial judge will have before him our views on the issues upon which his further consideration is necessary.

2. The following relevant facts were found by the trial judge. O'Meara agreed to purchase approximately sixty acres of land from one O'Keefe. In April, 1956, he engaged engineers to draw plans for subdividing the land, which contained a house and a barn. One engineer was told that one lot (the barn lot) of about one and one-half acres was to include the barn and that the house was to be within a separate lot of about six acres (hereinafter called the house parcel). An engineer gave O'Meara a tracing of such a subdivision.

O'Meara engaged one McIsaac, a real estate broker, to procure a customer for the barn lot. O'Meara pointed out the boundaries to McIsaac and the latter obtained a copy of a print made from the subdivision tracing. McIsaac showed the property and the tracing print to Linse and walked with him over the property. On May 10, 1956, O'Meara and his wife and Linse signed an agreement for the sale for $12,500 to Linse and his wife of the 'barn and land at 410 South Street, Needham, as drawn on a plan by Frank L. Cheney, Engineer, dated May 8, 1956, containing about 64,841 feet.' Title was to pass on June 15, 1956. Mrs. Linse never signed the agreement. O'Meara received from Linse his check for $500 and deposited it, indorsing it under the words 'Deposit on 1 1/2 acres of land & barn at 410 South St. Needham.'

'Prior to' June 15 (the Cauleys contend that it was in late April) O'Meara orally agreed with Mrs. Cauley 'to convey the house and lot to her and to convey the balance of the 60 acres' ² to one Jensen and one Bielski. Cauley in April had agreed to finance O'Meara in the purchase of the land from O'Keefe and had furnished on April 12 his check for $5,000 to O'Keefe (which the testimony shows to have been a deposit). On June 15 O'Meara authorized O'Keefe to convey the sixty acres to Mrs. Cauley and that same morning he did so. The trial judge expressly found that Mrs. Cauley, 'out of her personal funds, paid a substantial sum * * * for the conveyance to her by O'Keefe and that she is a bona fide purchaser.' He also found expressly that 'Cauley knew of the agreement by O'Meara to sell the barn and lot to Linse * * * that the conveyance, under the agreement, was to be made on June 15 at 2 P.M. [and] * * * that he did induce O'Meara not to convey the barn and lot to linse unless Linse agreed to change the boundary lines so that some of the land would go with the house and lot which Mrs. Cauley intended to buy and which the Cauleys intended to occupy.'

With respect to the agreement between O'Meara and Linse, the judge found that O'Meara intended to sell and Linse to buy 'precisely what the agreement * * * and the sketch * * * [i. e. the surveyors' tracing, above mentioned] called for.' On June 15 at 2 p. m., 'Linse was at the registry of deeds and * * * then ready and able and willing to accept a deed for the barn and lot and to pay * * * the balance of the purchase price.' O'Meara 'did not appear and did not intend to * * * convey to Linse. He still has the $500 deposit.'

The judge ruled that O'Meara had committed a breach of a valid contract for which he was liable to the plaintiffs in nominal damages only, since no evidence of damage was introduced. He also ruled that 'specific performance cannot now be decreed, since Mrs. Cauley has a valid title, paid valuable consideration therefor, and was not a party to inducing O'Meara not to perform under his agreement with Linse. There is no evidence that she knew the contents of that agreement.'

3. Although the parties have argued many issues, it is plain that the plaintiffs cannot have specific performance if, as the trial judge found, Mrs. Cauley has title to the house parcel and the barn lot and is a bona fide purchaser. The present controversy arises because it was discovered late in May or early in June that Mrs. Cauley claimed she had an oral contract to acquire from O'Meara the house parcel, including as a part of that parcel some land (hereafter called the disputed area) on the westerly side of the barn lot that O'Meara had agreed to sell to Linse.

The judge's finding, that '[p]rior to June 15, O'Meara orally agreed with * * * [Mrs.] Cauley to convey the house and lot to her,' does not definitely fix the date of the oral agreement or the exact content of 'the house and lot.' The evidence, however, would justify findings that O'Meara had an oral agreement with Mrs. Cauley, as early as April 30, to sell to her for $40,000 the house parcel and, as part of it, the disputed area. As to such an oral agreement, only one who was a party to it could assert the statute of frauds. Restatement: Contracts, § 218. See Hoffman v. Charlestown Five Cents Sav. Bank, 231 Mass. 324, 329, 121 N.E. 15; Town of Belmont v. Massachusetts Amusement Corp., 333 Mass. 565, 571, 132 N.E.2d 172.

The evidence does not show clearly how much Mrs. Cauley knew, before title passed to her, about the full details of any overlapping of the area which she proposed to buy from O'Meara and the barn lot. The affidavit mentioned below appears to be the most direct testimony that Mrs. Cauley had seen, or actually knew the contents of, O'Meara's contract with the Linses. See South Street Inn, Inc. v. Muehsam, 323 Mass. 310, 312, 81 N.E.2d 821. Cauley testified that he 'never knew of it [Linse's contract] until three or four days after it was executed,' did not see it until even later, and first approached Linse about it in June 'a week or some two weeks after * * * [he] learned of' it. Cauley admitted executing an affidavit that 'as soon as the situation was called to the attention of Mrs. Cauley, and at her request * * * [he, Cauley] had three...