O'Malley v. Grady

• Decision Date: 16 October 1915
• Citation: 222 Mass. 202,109 N.E. 829
• Parties: O'MALLEY et al. v. GRADY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

222 Mass. 202

109 N.E. 829

O'MALLEY et al.

v.GRADY.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 16, 1915.

Appeal from Superior Court, Worcester County; Chas. F. Jinney, Judge.

Action by Anthony O'Malley and others against Lydia J. Grady. Judgment for plaintiffs, and defendant brings exceptions. Plaintiff's exceptions overruled, defendant's exceptions sustained, and judgment for defendant.

George E. O'Toole and John H. O'Brien, both of Clinton, for plaintiffs.

Thomas L. Walsh, Charles B. O'Toole, and James H. Walsh, Jr., all of Fitchburg, for defendant.

LORING, J.

The circumstances which gave rise to this action were as follows: In the latter part of April, 1914, the selectmen of Clinton voted to issue a liquor license to the plaintiffs ‘to be exercised upon certain premises.’ The plaintiffs made application to the board of selectment to transfer this license to premises controlled by the defendant. While this application for transfer was pending the plaintiffs and defendant executed a lease of the fixtures and furniture on the premises to which the plaintiffs wished to have their liquor license transferred. This was a lease dated April 28, 1914, for the term of one year from the first day of May, 1914. The rent stated in the lease was three hundred and fifty dollars, to be paid in advance. The plaintiffs were allowed by the judge to introduce evidence that at the time when the plaintiffs signed the lease the plaintiffs' attorney said to the defendant, ‘What if we don't get our transfer?’ to which the defendant answered, pointing to the lease, ‘If you don't get your transfer it don't go. You will get your money back.’ To this one of the plaintiffs said, ‘Do we get our money back?’ and the defendant answered, ‘I think you know me well enough to trust me.’ The plaintiffs' attorney further testified that it was not suggested that the lease should be held in escrow. The lease was then signed and delivered by the defendant to the plaintiffs and the plaintiffs paid the defendantthe $350 which was to be paid in advance. The defendant testified that no such conversation took place. Later the selectmen refused to grant the transfer of the liquor license which the plaintiffs had asked for. Thereupon the plaintiffs asked for the repayment of the $350. On the defendant's refusal to make repayment this action was brought.

The case was tried by the court sitting without a jury, and the judge found for the defendant. The judge made this special finding:

‘It was not agreed that the lease was to be held in escrow or to be delivered upon a condition, or that the money paid thereunder was to be held upon a condition.’

The judge further stated that the admission of the oral testimony as to what took place at the time of the execution of the lease was objected to by the defendant--

‘but in order to fully find the facts I admitted said evidence subject to her exception. But upon the facts found, I rule as a matter of law that the plaintiffs cannot recover, and direct a finding for the defendant. If my ruling is erroneous, a finding for the plaintiffs is to be entered for $350 with interest from the date of the writ. It is agreed by the parties that if the oral testimony above referred to was not properly admitted, the defendant's exception to its admission is to be sustained and judgment is to be entered for the defendant.’

The evidence admitted contradicted the terms of the lease. The lease by its terms provided that the defendant demised to the plaintiff the fixtures and furniture in question for a year, to be paid for in advance. The oral agreement provided that if the transfer of the liquor license asked for by them should not be granted the lease should terminate or not go into effect and the rent should be repaid. It is plain that this oral agreement contradicts or modifies the terms of the lease, and that it is not an oral agreement collateral to the written agreement which...