Lupien v. First Federal Sav. & Loan Ass'n of Lowell

• Decision Date: 11 July 1966
• Citation: 351 Mass. 311,218 N.E.2d 706
• Parties: Albert J. LUPIEN v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF LOWELL. . March 8, May 23, and
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 706

218 N.E.2d 706

351 Mass. 311

Albert J. LUPIEN v.FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF LOWELL.

Supreme Judicial Court of Massachusetts, Middlesex.

March 8, May 23, and July 11, 1966.

Eugene L. Tougas, Waltham, for plaintiff.

Carlton W. Spencer, Boston (George G. Pierce, Boston, with him), for defendant.

Before WILKINS, C.J., and SPALDING, CUTTER, SPIEGEL and REARDON, JJ.

REARDON, Justice.

This is an appeal from a final decree entered in favor of the defendant(the bank) upon a bill in equity brought by the plaintiff to compel the bank to convey certain real estate to him and to pay damages.The bank filed a counterclaim asserting indebtedness of the plaintiff to the bank.The plaintiff answered to the counterclaim and petitioned in set-off seeking an accounting.He alleged in his answer that the bank had waived certain terms of an agreement between the parties and had engaged in misrepresentations which damaged the plaintiff.The case was referred to a master who found that the plaintiff was in default and that there was no impropriety on the part of the bank in terminating the agreement.

In 1960, the plaintiff conveyed the land involved to certain persons, taking a second mortgage.The bank lent money to those same persons under terms of a construction mortgage.In January, 1962, the bank foreclosed, and n March 29, 1962, '(i)n an effort by both * * * (the plaintiff) and * * * (the bank) to salvage their respective financial and security interests in the land,' an agreement was made.Under the agreement the bank was to sell the plaintiff certain lots, 'some vacant, some with houses substantially completed, and some where construction was partly completed,' hereafter called the locus.The plaintiff was to pay $533,561.36 by April 30, 1965, plus such advances as the bank would make to him from time to time.On the sum to be repaid six per cent accumulated interest per annum was also to be paid, beginning May 1, 1962.The plaintiff agreed to complete the partially constructed houses in accordance with the plans and specifications of the bank and subject to its approval by October 15, 1962.The plaintiff further agreed to assume and pay all real estate taxes, water charges, and insurance costs from January of 1962, and to exert his best efforts to sell the houses on terms that were approved by the bank.The proceeds from the sale of the houses were to be turned over to the bank to be applied to the contract balance of $533,561.36 after subtracting a reasonable real estate broker's commission and a sum not to exceed five percent of each sale price to be paid to the plaintiff for his services.Time was agreed to be of the essence of the contract.

'Sometime about' May of 1962, the plaintiff informed the bank that he was unable to make the required payments for the insurance, water, and taxes.The bank stated that the bills had to be paid and that it would make the payments.The plaintiff submitted bills for construction expenses to the bank and all such bills were paid by the bank.At no time was any work done on the houses disapproved.On October 15, 1962, however, the plaintiff had not completed the work on the houses.About the end of May, 1963, the plaintiff requested the bank to write additional construction mortgages for vacant lots in the locus.The bank refused and, on June 5, 1963, wrote to the plaintiff that he had until June 12, 1963, to submit for confirmation the sale agreements for at least seventy per cent of the vacant lots in the locus.The plaintiff was unable to submit such sale agreements and on June 20, 1963, in the manner prescribed in the agreement, the bank informed the plaintiff that it had terminated the agreement because of his failure to comply with its terms.On June 25, 1963, the plaintiff brought this suit.Following its commencement several of the lots in the locus were conveyed by the bank to purchasers obtained through the efforts of the plaintiff or his brokers.On the sales after the commencement of the action, the bank paid the broker's commission and paid into court an amount equal to five per cent of the purchase prices.The master found that the plaintiff had exerted his best efforts to sell the houses as required by the agreement, that there had been no waiver of the agreement's terms by the bank, and that the bank had made no misrepresentations.In his findings the master stated that some of the houses on the locus had been rented during the period the agreement was in force and the rents paid to the bank.The evidence was not reported by the master.There was no appeal from the interlocutory decree confirming the master's report.

The final decree, entered on the basis...