Rosenfield v. United States Trust Co.
| Decision Date | 27 March 1935 |
| Citation | 195 N.E. 323,290 Mass. 210 |
| Parties | ROSENFIELD et al. v. UNITED STATES TRUST CO. et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from Superior Court, Suffolk County; Morton Judge.
Action of contract by Harry Rosenfield and another against the United States Trust Company and others. Verdicts were ordered for defendants, and plaintiffs bring exceptions.
Exceptions overruled.
D. Stoneman and A. A. Tepper, both of Boston, for plaintiffs.
L. M. Friedman and F. L. Kozol, both of Boston, for defendants.
This is an action at law in contract, wherein the plaintiffs seek to recover damages for the breach of an agreement to lease to them certain premises known as No. 42 Winter Street, Boston. The action was instituted originally by a bill in equity for specific performance, but was subsequently amended into its present form by leave of court on the plaintiffs' motion. The case was tried in the Superior Court to a jury. The pleadings are made a part of the plaintiffs' bill of exceptions. Among other things the defendants pleaded the statute of frauds.‘ At the trial no paper or document was displayed, exhibited, offered or marked either as an exhibit, as an exhibit for identification or otherwise containing any signature, initials or handwriting of any of the defendants.’ At the close of all the testimony the defendants presented written motions that a verdict be directed for each defendant. The judge allowed the motions, and pursuant thereto the jury returned a verdict for each defendant as directed. The substitute bill of exceptions sets forth all the evidence material to the questions presented.
The evidence in its aspect most favorable to the plaintiffs, Metayer v. Grant, 222 Mass. 254, 110 N.E. 310, on the basis that all evidence unfavorable to the plaintiffs may be disbelieved, Lindenbaum v. New York, New Haven & Hartford Railroad Co., 197 Mass. 314, 84 N.E. 129, warranted the jury in finding the following facts: In April, 1933, the building in question was vacant and needed extensive alteration before it would be fit for occupancy. Abraham C. Ratshesky, individually, was the owner of one undivided half interest, and said Abraham C. Ratshesky, Theresa S. Ratshesky, Alan R. Morse and the United States Trust Company were the owners, as trustees under the will of Israel A. Ratshesky, of the other undivided half interest. Abraham C. Ratshesky was chairman of the board of directors of the United States Trust Company, with general oversight of the business of the bank, subject to the executive committee and the board of directors. He had power, however, to carry on the routine work of the bank as its representative between the meetings of the board. Morse was at all times vice president and treasurer of the trust company acting with said Ratshesky as the administrative trust officer of the company. Theresa S. Ratshesky was the widow of the said Israel A. Ratshesky.
Early in April, 1933, one William L. Berger, an attorney acting in behalf of the plaintiffs, discussed with Morse the prospect of securing a lessee of the first floor and basement of the building in question for the purpose of conducting therein a jewelry business. Morse informed Berger that the trustees were primarily interested in renting the whole building, and that A. C. Ratshesky wanted to rent the whole building. On April 18, 1933, Berger again saw Morse and told him that the plaintiffs would be willing to pay $15,000 for one year, and $20,000 for four years, with an option in the lessors to take seven per cent of the gross sales, the lessors to put in a store front and to supply heat. The next day, April 19, 1933, Morse telephoned to Berger that Ratshesky would rent the store and building from June 1, until December 31, at the rate of $15,000 per annum, and at the rate of $20,000 for four years and five months, with the option in the lessors to take seven per cent of the gross sales, the lessee to pay a deposit of $1,250 and the lessors to have the right to take gross sales monthly. He wanted semi-annual reports. The lessors would put a ‘ bang up’ store front in and ‘ build a nice place’ for the lessees so they could do business. Berger in reply said that he would talk with his people, and asked Morse ‘ to come in town so we could discuss it further.’ Later that morning Morse came in to the office of Berger. They talked about the bankruptcy of Homer's, Inc. Berger said that the business on Summer Street was not very good, resulting in bankruptcy for Homer's, Inc.; that Summer Street was not the proper location for their type of jewelry store; that Homer's, Inc., had been on Winter Street and that was where they belonged; that they had assurance of financial backing and that somebody would put up money to buy the assets (Homer's) back from the bankruptcy court, buy the stock and fixtures and goodwill, name and accounts receivable, and this party was going to advance about $250,000 to keep the place adequately stocked so sufficient business could be done. Berger then suggested a new store front like Nisley's. Morse said Ratshesky would refer the matter of front to one Graham, that everything referring to the architecture of the building was referred to Graham. At a later conference the same day Berger's client, Levine, said he would like to call in for suggestions an architect named Bassett. They discussed where the entrance was to be and decided it should be on the Washington Street side of the store. They also discussed heat, and the question of examining the books of the lessee. Berger made notes at these conferences on April 19 of ‘ terms and conditions' which were to be contained in the lease.
On April 20, Berger and Levine met Morse and Ratshesky. The subject matter discussed with Morse on April 19, was rediscussed with Ratshesky. At the close of the talk Berger said to Ratshesky: ‘ Well, suppose we draw up a short form of agreement now as long as we have agreed on the terms?’ Ratshesky replied: ‘ There is no sense in that because I will refer it to counsel immediately and they will draw a lease and it will be just as easy to draw a lease as to draw a short form because everything in the short form has got to be in the lease.’ Berger then said: ‘ Let's check and see if we have got everything smoothed out so there is no mistake.’ Berger read from his ‘ memo’ each item and said, ‘ There is nothing else.’ Ratshesky replied: and he put his name on the bottom of the sheet that Morse had given to him and handed it to Morse, saying: ‘ Here Alan, give that to Norman Walker and have him draw a lease.’
On April 21, Berger told Ratshesky that Spinoza, an attorney for the plaintiffs, was going to see Referee Black in an effort to buy the assets of Homer's, Inc., including the goodwill and accounts receivable, at a private sale rather than at an auction sale. Berger thought it would be a good idea to have some sort of letter from Ratshesky to Black advising him, as referee, that the deal had been closed. Ratshesky said there was no need of any letter, ‘ You just tell Mr. Black that the deal is closed and then if he insists, why come back and I will give you a letter.’ That afternoon Berger told Ratshesky that ‘ we would have a sketch of the store front for him.’ He said the ‘ deal was closed and that was all there was to it; and nothing was said about the formality that the deal would have to take, whether it was necessary to get in touch with other of the defendants or bank representatives.’ On that day Berger brought to Ratshesky Bassett's sketch, plan and estimate of what the work would cost-$4,300 exclusive of removing the pillar. Ratshesky said that was a lot of money. That evening in Ratshesky's office, sketches from Graham's office were considered in connection with a sketch from Bassett's office. On April 24, Berger had a talk with Ratshesky who said he was working on Berger's proposition and had the plans and specifications in his office. On April 27, at a conference, Ratshesky said ‘ that they had been going over the figures and they did not think they wanted to spend $5,100.00 on this front which was the final figure he had received from Bassett.’ He said ‘ he would go fifty-fifty’ with them, and asked if they could not put down $1,000 toward their half of the store front and pay the balance $100 a month. Ratshesky said it would be unnecessary to put the arrangement in the lease, that he would ‘ give a separate letter to this effect,’ and Berger said, ‘ Wait until I get that down,’ and then wrote down substantially what was agreed upon. Ratshesky took a little piece of paper from a box on his desk and wrote it down. Between April 28 and May 1, one Hartstone, an attorney for the defendants, gave Berger a first draft and a second draft lease (respectively Exhibits 1 and 2). Berger and Hartstone met several times, discussed the terms of these drafts and made changes and additions thereto. The subject matters under consideration were the method of supplying heat, the amount which the plaintiffs were to pay therefor, if anything, the question of liability for water taxes, the medium in which the rent payments were to be made and other details. At some time between May...
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