Mirachnick v. Kaplan

• Citation: 1 N.E.2d 40,294 Mass. 208
• Parties: MIRACHNICK v. KAPLAN.
• Decision Date: 01 April 1936
• Court: United States State Supreme Judicial Court of Massachusetts

294 Mass. 208

1 N.E.2d 40

MIRACHNICK v. KAPLAN.

Supreme Judicial Court of Massachusetts, Suffolk.

April 1, 1936

Action of contract by Goldie Mirachnick against Sam Kaplan. From an order sustaining the defendant's demurrer to the declaration, plaintiff appeals.

Affirmed.

Appeal from Superior Court, Suffolk County; Fosdick, Judge.

G Gruzen, of Boston, for appellant.

M Fulman, of Boston, for appellee.

QUA Justice.

The plaintiff appeals from an order sustaining the defendant's demurrer to the plaintiff's declaration in an action of contract.

After alleging that the defendant had taken possession of the plaintiff's premises for the purpose of foreclosing a mortgage which he held upon them, the declaration states the contract in these words: ‘ It was finally agreed between the plaintiff and the defendant that if the plaintiff would pay to the defendant the sum of one hundred dollars, the plaintiff to continue to occupy the premises that she occupied heretofore, and pay the defendant a rental for such premises, and that the defendant collect all rentals from all the other tenants, that the plaintiff continue with the negotiations with the Home Owners Loan Corporation for refinancing the said property, that the defendant would remain in possession of the premises under the foreclosure proceedings and would postpone the date of foreclosure of his mortgage from time to time until the Home Owners Loan Corporation made a final decision upon the plaintiff's application.’ The only breach set forth is that the defendant failed to postpone his foreclosure sale until a final decision upon the plaintiff's application.

Although the alleged contract is not very clearly expressed, it is apparent that under any reasonable construction of the declaration the defendant's promise to delay his foreclosure was conditional: (1) Upon the plaintiff paying the defendant the sum of $100, (2) upon the plaintiff paying a rental to the defendant, and (3) upon the plaintiff continuing with reasonable diligence the negotiations with the Home Owners Loan Corporation for refinancing the property. It was incumbent upon the plaintiff to prove performance of these conditions on her part and likewise to allege such performance in her declaration. Newton Rubber Works v. Graham, 171 Mass. 352, 50 N.E. 547; Marsch v. Southern New England Railroad Corporation, 230 Mass. 483, 490, 120 N.E. 120; Jewett v. Warriner, 237 Mass. 36, ...