Lynch v. Andrew
| Court | Appeals Court of Massachusetts |
| Writing for the Court | KASS |
| Citation | 20 Mass.App.Ct. 623,481 N.E.2d 1383 |
| Decision Date | 02 October 1985 |
| Parties | John E. LYNCH et al. 1 v. Stephanie ANDREW. |
Page 1383
v.
Stephanie ANDREW.
Norfolk.
Decided Aug. 19, 1985.
Further Appellate Review Denied Oct. 2, 1985.
Page 1384
Martin S. Cosgrove, Quincy, for plaintiffs.
Paul E. Troy, Boston, for defendant.
Before KASS, CUTTER and SMITH, JJ.
KASS, Justice.
At the behest of the buyers' lawyer, a mortgage financing condition was added to a purchase and sale agreement prepared on a printed form published by the Greater Boston [20 Mass.App.Ct. 624] Real Estate Board. Claiming inability to secure mortgage financing, the buyers, the plaintiffs in this action, say they were excused from performance and demand recovery of the $25,400 deposit which they made under that agreement.
The text of the financing clause is as follows: "Buyer shall apply to a conventional bank or other mortgage loan institution for a loan of [$155,000] payable in not less than thirty ... years at prevailing interest rates.
"If, despite Buyer's diligent efforts, a commitment for such a loan is not obtained on or before April 26, 1982, the Buyer may terminate this Agreement by written notice to Seller or the brokers as agent for the Seller prior to the expiration of such time, whereupon all deposits made under this Agreement shall be [returned and this agreement shall be] void and without recourse to the parties hereto."
On the deadline date, April 26, 1982, the buyers notified the seller that they were unable to secure financing and, therefore, exercised their rights of termination under the agreement. The seller thought the buyers' effort to obtain mortgage financing had been less than diligent and refused to return the buyers' $25,400 deposit, thus provoking this action. A judge of the Probate Court, sitting by statutory designation in the Superior Court, heard the case without a jury. The judge determined that the buyers' efforts to secure financing lacked diligence, but that the liquidated damages clause in the purchase and sale agreement, which provided for retention by the seller of the entire deposit, was punitive. Actual damages, he found, were $8,400, and he reduced the amount which the seller could retain accordingly. Both sides have appealed from the resulting judgment.
1. Diligence of the buyers' efforts to obtaining financing. The judge found that the buyers' efforts to obtain a mortgage loan consisted chiefly of inquiries about interest rates and lending options at various banks and the making of loan applications with two lenders, BayBank Middlesex and Old Stone Bank of Providence, Rhode Island. On the calculation that a loan from BayBank Middlesex was likely, the buyers withdrew the loan application to Old Stone to avoid a $275 application fee.
Page 1385
As [20 Mass.App.Ct. 625] the deadline for obtaining a loan commitment grew nearer, the buyers flirted with a third lending source, but it looked as if consideration of the loan would take them past the date of decision and the buyers made no further loan application. Only one application, to BayBank Middlesex for a loan of $130,000, was perfected.There was evidence that BayBank informed the buyers that it was ready to lend the $130,000 requested, if the buyers would show the bank where the rest of the purchase money (the balance was $98,600) was coming from. The buyers responded that proceeds of sale of a house they owned in Wellesley would provide the money above the mortgage. No agreement to sell that house had yet been made, however. To accommodate its customer, the bank offered a "bridge loan," i.e., a loan for the balance figure which the borrowers would repay when they sold the house they already owned, and which the bank asked to secure with a mortgage on the buyers' existing house and a property they owned in Chatham.
Those loan terms struck the buyers as "getting a little more complicated." The bank offered a blanket mortgage but that, similarly, was not to the liking of the borrowers. On April 26th John Lynch called the loan officer he had been dealing with at the bank and told her he had "decided not to go through with the transaction," and requested that she send him a rejection letter. She did so.
In deciding that the buyers had not made diligent efforts to obtain a mortgage loan, the judge thought that the buyers could reasonably refuse to encumber other of their properties but that making only one loan application...
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Baybank Middlesex v. 1200 Beacon Properties, Inc., Civ. A. No. 89-2364-C.
...870 F.2d 761, 764-65 (1st Cir.1989); A-Z Servicenter, Inc. v. Segall, 334 Mass. 672, 675, 138 N.E.2d 266 (1956); Lynch v. Andrew, 20 Mass.App.Ct. 623, 627, 481 N.E.2d 1383, review denied, 396 Mass. 1102, 484 N.E.2d 102 (1985); Renda v. Gouchberg, 4 Mass.App.Ct. 786, 786, 343 N.E.2d 159 (197......
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Kelly v. Marx, No. 96-P-0114
...same price, and without complicating factors which make the actual damages difficult to calculate with precision." Lynch v. Andrew, 20 Mass.App.Ct. 623, 628, 481 N.E.2d 1383 Were our inquiry limited to the circumstances obtaining at the time the parties entered into their agreement, we woul......
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In re 201 Forest Street LLC, No. 07-42296-JBR.
...350 Mass. 157, 158, 213 N.E.2d 866 (1966); A-Z Servicenter v. Segall, 334 Mass. 672, 675, 138 N.E.2d 266 (1956); Lynch v. Andrew, 20 Mass.App.Ct. 623, 627, 481 N.E.2d 1383 (1985); Restatement (Second) of Contracts § 356 (1981). "A provision setting an unreasonably large liquidated damages a......
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Kunelius v. Town of Stow, No. 08-2393.
...disproportionate to a reasonable estimate of actual damages' made at the time of contract formation." Id. (quoting Lynch v. Andrew, 20 Mass.App.Ct. 623, 481 N.E.2d 1383, 1386 Interestingly, most cases challenging liquidated damages provisions do so on the theory that overly large liquidated......
-
Baybank Middlesex v. 1200 Beacon Properties, Inc., Civ. A. No. 89-2364-C.
...870 F.2d 761, 764-65 (1st Cir.1989); A-Z Servicenter, Inc. v. Segall, 334 Mass. 672, 675, 138 N.E.2d 266 (1956); Lynch v. Andrew, 20 Mass.App.Ct. 623, 627, 481 N.E.2d 1383, review denied, 396 Mass. 1102, 484 N.E.2d 102 (1985); Renda v. Gouchberg, 4 Mass.App.Ct. 786, 786, 343 N.E.2d 159 (197......
-
Kelly v. Marx, No. 96-P-0114
...same price, and without complicating factors which make the actual damages difficult to calculate with precision." Lynch v. Andrew, 20 Mass.App.Ct. 623, 628, 481 N.E.2d 1383 Were our inquiry limited to the circumstances obtaining at the time the parties entered into their agreement, we woul......
-
In re 201 Forest Street LLC, No. 07-42296-JBR.
...350 Mass. 157, 158, 213 N.E.2d 866 (1966); A-Z Servicenter v. Segall, 334 Mass. 672, 675, 138 N.E.2d 266 (1956); Lynch v. Andrew, 20 Mass.App.Ct. 623, 627, 481 N.E.2d 1383 (1985); Restatement (Second) of Contracts § 356 (1981). "A provision setting an unreasonably large liquidated damages a......
-
Kunelius v. Town of Stow, No. 08-2393.
...disproportionate to a reasonable estimate of actual damages' made at the time of contract formation." Id. (quoting Lynch v. Andrew, 20 Mass.App.Ct. 623, 481 N.E.2d 1383, 1386 Interestingly, most cases challenging liquidated damages provisions do so on the theory that overly large liquidated......