Rosenberg v. Heffernan

• Decision Date: 02 January 1908
• Citation: 83 N.E. 316,197 Mass. 151
• Parties: ROSENBERG et al. v. HEFFERNAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

197 Mass. 151

83 N.E. 316

ROSENBERG et al. v. HEFFERNAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 2, 1908

COUNSEL

Edw. J. Doherty, for appellants.

Max Fischacher, for appellees.

OPINION

MORTON J.

This is a bill in equity to enforce the specific performance of a written agreement entered into between the plaintiffs and the defendants Mary A. and her husband William G. Heffernan for the sale and purchase of certain real estate belonging to the said Mary situated in Cambridge. The premises were subject to a mortgage in favor of one Celia Green and subsequent to the written agreement aforesaid, were conveyed by said William and Mary to one Louis Levy. The said Green and Levy were made parties and the bill contained allegations of fraud and conspiracy against all of the defendants. There was a hearing and a decree was entered dismissing the bill as to said Green and Levy and denying specific performance but finding that the Heffernans had refused to perform their agreement and that the plaintiffs had been damaged thereby and retaining the bill for the assessment of damages. The Heffernans appealed. There is no report of the evidence on which this decree was based. The case was sent to a master to assess the damages. He made a report assessing damages in favor of the plaintiffs in the sum of $950.

Exceptions to the report were filed by the said William and Mary which were overruled and the master's report was confirmed and a final decree was entered in favor of the plaintiffs against the defendants William and Mary for the sum of $950 damages with interest. The defendants Heffernan appealed from this decree and from the order confirming the master's report. There is no report of the evidence on this branch of the case. The presiding justice at the request of the defendants Heffernan, whom we shall speak of hereafter as the defendants, made certain findings of fact in addition to those recited in the first decree. The findings thus made and the master's report in regard to the assessment of damages and the exceptions thereto, and the pleadings are all that is before us.

The defendants do not contend that the bill was not properly retained for the assessment of damages if it appeared that they had committed a breach of the agreement and were unable to specifically perform it.

The agreement contained amongst other provisions the following 'Three hundred and fifty dollars is to be held by the purchasers to secure right of way and other privileges from Michael Heffernan of said Cambridge but if said rights are secured for less than said sum, the balance is to be paid to said Mary A. Heffernan, if said rights cannot be secured for said sum the party of the first part shall return said $100'--meaning the $100 which the agreement recites was paid by the plaintiffs as a part of the purchase price on the day on which the agreement was entered into. The master found that 'the right of way and other privileges' referred to could not be purchased for $350 but could be purchased for $500. And one contention of the defendants is that according to the true construction of the provision quoted above the effect of the master's finding was to relieve them from any further obligation to convey; their contention being that according to the true construction of the written agreement, if the right of way and other privileges could not be secured for...