Rothenberg v. Newton Mortgage Corp.
| Decision Date | 28 November 1930 |
| Citation | 273 Mass. 399,173 N.E. 433 |
| Parties | ROTHENBERG v. NEWTON MORTGAGE CORPORATION. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from District Court of Newton; A. L. Braley, Judge.
Action by Ephraim Rothenberg against the Newton Mortgage Corporation, with trustee process. From an order of the appellate division dismissing a report from the decision of the trial judge in defendant's favor, plaintiff appeals.
Order dismissing report affirmed.
S. I. Jacobs, of Boston, for appellant.
William M. Noble, of Boston, for appellee.
This case is before us upon an appeal by the plaintiff from the order of an appellate division dismissing a report from the decision of a trial judge who refused the plaintiff's requests for instructions and found for the defendant. The plaintiff waived the first count of his declaration. He relied on a count upon a quantum meruit, and a count claiming a balance due upon an order accepted by the defendant. No new question of law is presented. The determination whether work was done and labor and materials furnished by the plaintiff upon an agreement by the defendant to pay for them was matter of fact. There was evidence which would support the finding. Consequently neither the appellate division upon report nor this court on appeal can disturb it. The decision of the trial judge is final. Saunders v. Smith Granite Co., 232 Mass. 1, 121 N. E. 431.
The order accepted by the defendant was conditional on the construction of the building upon which the plaintiff's work was done reaching the ‘stage required by the construction agreement’; and ‘The discharge of the mortgage, or failure to fulfill the requirements of the construction mortgage agreement shall automatically release the Newton Mortgage Corporation from any performance on account of or under this order.’ There was evidence that the owner never completed the building or became entitled to the payment referred to in the order. The building was, in fact, completed by the construction mortgagee, the defendant, after the foreclosure of its mortgage, and after failure by the contracting owner to fulfill its requirements. There is no merit in the plaintiff's contention that his order became due and payable on the completion of the building by any one other than the contracting owner. The matter is decided, in principle, by O'Connell v. Root, 254 Mass. 218, 150 N. E. 160. No circumstances were established by the evidence which make the decisions...
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Franklin v. North Weymouth Co-Operative Bank
...O'Connell v. Root, 254 Mass. 218, 222, 150 N. E. 160;Joly v. Stoneman, 271 Mass. 352, 356, 357, 171 N. E. 470;Rothenberg v. Newton Mortgage Corp., 273 Mass. 399, 173 N. E. 433. The allegations of the bill imply that the building has not been and never will be completed by the defendant. If ......
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Sprague v. Rust Master Chemical Corp.
... ... Root, 254 Mass. 218 ... Joly v. Stoneman, 271 Mass. 352 ... Rothenberg ... v. Newton Mortgage Corp. 273 Mass. 399 ... Williams v ... Whitinsville Savings Bank, 283 ... ...
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Williams v. Whitinsville Sav. Bank
...O'Connell v. Root, 254 Mass. 218, 150 N. E. 160;Joly v. Stoneman, 271 Mass. 352, 356, 357, 171 N. E. 470;Rothenberg v. Newton Mortgage Corp., 273 Mass. 399, 173 N. E. 433. The case of Cox v. Hoxie, 115 Mass. 120, cited and relied on by the plaintiff, is distinguishable in its facts from the......
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...created no obligation on the part of the bank to advance the remainder of the loans to the plaintiffs. See Rothenberg v. Newton Mortgage Corp., 273 Mass. 399, 402, 173 N.E. 433 (1930); Williams v. Whitinsville Sav. Bank, 283 Mass. 297, 299-300, 186 N.E. 82 (1933). See also Evans Products Co......