Manoog v. Miele

Citation350 Mass. 204,213 N.E.2d 917
PartiesCharles MANOOG v. Charles C. MIELE et al.
Decision Date07 February 1966
CourtUnited States State Supreme Judicial Court of Massachusetts

Neil A. Cooper, Malden, for defendants.

Dennis M. Cronin, West Newton, for plaintiff.

Before WILKINS, C. J., and WHITTEMORE, CURTTER, KIRK and REARDON, JJ.

REARDON, Justice.

This case involves a deficiency judgment and is here on the defendants' exceptions to the judge's refusal to give certain instructions to the jury and to his exclusion of a question during trial. The facts are as follow.

On December 4, 1958, the defendants executed a $45,000 note secured by a mortgage on certain parcels of real estate. They defaulted on this note in May, 1962. Following notice on October 5, 1962, of his intention to foreclose, the plaintiff took possession of the premises on October 23, 1962. On October 26, 1962, nineteen days before the foreclosure sale, the plaintiff Manoog entered into an agreement with one Barber for the purchase and sale of the property described in the mortgage. Under the agreement Barber gave Manoog a $2,000 deposit and contracted to purchase the premises from him for $45,000, subject however to the acquisition of title by Manoog at the foreclosure sale. Manoog described the contract purchase price of $45,000 as a 'fair price for that property' on October 26, 1962. The agreement further provided that Manoog was to receive from Barber as part of the purchase price a ten year mortgage in the sum of $35,000 at six per cent interest and was to pay a broker's commission. Manoog 'talked' to the defendant Snow about the agreement before it was executed but did not then or later disclose the purchase price. Before the foreclosure sale Manoog permitted Barber to occupy the premises and to bring trucks upon the property. At the foreclosure sale held on November 14, 1962, there were seven or eight people in attendance, including Barber, and the auctioneer made a general solicitation for bids. Manoog, however, was the sole bidder and, when his bid of $40,000 was accepted, he gave the auctioneer a $2,000 deposit in accordance with the terms of the sale as advertised. Sometime thereafter Manoog sold the land to Barber for $45,000. In this action the jury assessed a deficiency of $5,488.67 against both defendants. This figure reflected the total of the unpaid balance of the note, unpaid interest thereon to the date of sale, taxes paid by Manoog, and the costs of sale, with credits to the defendants for rents received by the plaintiff prior to sale, and such amounts as they had prepaid for the real estate taxes.

1. The question which was put to the plaintiff and excluded was, 'You expected to keep the $45,000.00 when you passed papers on that property without disclosing it to Snow or Miele?' There was evidence that the plaintiff had never disclosed to the defendants the details of his agreement with Barber. Since the plaintiff never in fact disclosed the price, whether or not he had intended to disclose it was of no importance. The question asked was thus immaterial and the judge did not err in excluding it.

2. The judge, in charging the jury on the responsibilities of the mortgagee in the circumstances described above, cited and quoted from West Roxbury Co-op Bank v. Bowser, 324 Mass. 489, 492, 87 N.E.2d 113, 115, where it was said, 'It is familiar law that a mortgagee in exercising a power of sale in a mortgage must act in good faith and must use reasonable diligence to protect the interests of the mortgagor. * * * The burden is on the mortgagor (the defendants here) to prove that the mortgagee has failed in that duty. * * * When, as was the fact here, 'a mortgagee * * * is both seller and buyer, his position is one of great delicacy. Yet, when he has done his full duty to the mortgagor in his conduct of the sale under the power, and the bidding begins, in his capacity as bidder a mortgagee may buy as cheaply as he can, and owes no duty to bid the full value of the property as that value may subsequently be determined by a judge or a jury.'' The judge continued his charge, 'Now, the defendants have introduced evidence and a fact that is not disputed is that prior to the foreclosure sale plaintiff made an arrangement with one Mr. Barber to sell the property to him at a price of $45,000. The defendant[s] * * * [claim] that under those circumstances there was a breach of the duty owed by the mortgagee in the mortgagee's conduct of the foreclosure sale. That is a question of fact that you will have to determine. It is not a question of law, but I can instruct you the defendant[s] * * * [argue] that you have a price differential there. * * * You are entitled to ask yourselves, also, these questions. Acting in good faith and with reasonable diligence, should Mr. Manoog have said to Mr. Barber when they were negotiating for a property, 'Look, the property is going to be sold at a foreclosure sale. Why don't you show up at the sale and bid for yourself?' Should he have refrained from entering into an agreement as a matter of good faith with Mr. Barber or were the terms of the agreement he entered into substantially different from the...

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6 cases
  • Seppala & Aho Const. Co., Inc. v. Petersen
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 14 Septiembre 1977
    ...the interests of the mortgagor." West-Roxbury Co-op. Bank v. Bowser, 324 Mass. 489, 492, 87 N.E.2d 113, 115 (1949). Manoog v. Miele, 350 Mass. 204, 206, 213 N.E.2d 917 (1966). Union Mkt. Nat'l Bank v. Derderian, 318 Mass. 578, 581-582, 62 N.E.2d 661 (1945). Sandler v. Silk, 292 Mass. 493, 4......
  • In re Edry
    • United States
    • U.S. Bankruptcy Court — District of Massachusetts
    • 25 Octubre 1996
    ...such disparity plus other circumstances can be. Sher v. South Shore Nat'l Bank, 360 Mass. 400, 274 N.E.2d 792 (1971); Manoog v. Miele, 350 Mass. 204, 213 N.E.2d 917 (1966); West Roxbury Co-op. Bank v. Bowser, 324 Mass. 489, 87 N.E.2d 113 (1949); DesLauries v. Shea, 300 Mass. 30, 13 N.E.2d 9......
  • Katz v. Winokur
    • United States
    • Appeals Court of Massachusetts
    • 4 Junio 1982
    ...the jury that the defendant had the burden of proving that the mortgagee violated the duty imposed upon him. See Manoog v. Miele, 350 Mass. 204, 206, 213 N.E.2d 917 (1966). In instructing the jury, he quoted almost verbatim from Cambridge Sav. Bank v. Cronin, 289 Mass. 379, 383, 194 N.E. 28......
  • Victorine v. Gudmand, s. 87-809
    • United States
    • Appeals Court of Massachusetts
    • 27 Abril 1988
    ...493, 498, 198 N.E. 749 (1935); Lynn Five Cents Sav. Bank v. Portnoy, 306 Mass. 436, 439, 28 N.E.2d 418 (1940); Manoog v. Miele, 350 Mass. 204, 206-209, 213 N.E.2d 917 (1966). It has been suggested that such a defendant might take an alternative tack (if he saw any advantage in it) and seek ......
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