McCormick v. Cheevers

• Decision Date: 25 March 1878
• Citation: 124 Mass. 262
• Parties: James McCormick v. James Cheevers
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

124 Mass. 262

James McCormick v. James Cheevers

Supreme Court of Massachusetts

March 25, 1878

Suffolk. Contract. The declaration contained two counts. The first count was upon the covenant against incumbrances contained in the defendant's deed to the plaintiff delivered June 12, 1874, of a parcel of land in Cambridge and alleged that the plaintiff had been obliged to pay an assessment for filling in the land, levied by the mayor and aldermen of Cambridge under the St. of 1872, c. 299; and which was a lien on the land when the deed was made. The second count alleged that the defendant, in consideration of the purchase of the land by the plaintiff, orally promised to pay any assessment that might be laid upon the land on account of any filling or grading in process at the time the plaintiff bought the land.

At the trial in the Superior Court before Allen J., without a jury the plaintiff offered in evidence, under the first count, an attested copy of an order of the mayor and aldermen, dated October 9, 1872, requiring the owners of land in a certain district, within which was the land sold, to fill in their lands to a specified grade; also a copy of the order making the assessment, dated April 19, 1876, and a bill of the amount assessed on the land sold, which the plaintiff paid.

The defendant asked the judge to rule that §§ 4, 5, 8 of the St. of 1872, c. 299, were unconstitutional, and that the assessment was invalid on account of certain alleged irregularities in the proceedings, which it is not necessary now to state in detail. The judge refused to give the rulings requested.

Under the second count the evidence in behalf of the plaintiff was as follows: The plaintiff testified that he said to the defendant, "You have to pay for the filling in;" that the defendant said, "There is no filling, or very little;" that the plaintiff said, "There is some;" and the defendant replied, "All right, I will pay it." The plaintiff's wife testified that the defendant said he would pay for the filling; that he would pay the assessments or bills when they came in from the city; that she held the money, the price for the land, and would not pay it over until he said this. Both the plaintiff and his wife testified that this conversation occurred at their lawyer's office, at the interview when the deed was delivered, and just before it was delivered, and that the deed was read to them. The plaintiff's attorney, who...