Rudnick v. Rudnick

• Decision Date: 30 November 1932
• Citation: 183 N.E. 348,281 Mass. 205
• Parties: RUDNICK v. RUDNICK et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

281 Mass. 205

183 N.E. 348

RUDNICK

v.RUDNICK et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 30, 1932.

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

Suit by Anna P. Rudnick against Morris Rudnick and others for rescission of an exchange contract. From an interlocutory decree establishing the right to rescission, and from the final decree, defendant named appeals.

Affirmed.

Nathan A. Heller, of Boston (Watchmaker & Heller, of Boston, of counsel), for appellant.

Miller & Miller, Edward Miller, and Samuel Miller, all of Boston, for appellee.

LUMMUS, J.

On June 24, 1930, the plaintiff exchanged an equity of redemption in real estate owned by her on Winchester street in Brookline for an equity of redemption in real estate on Winthrop road in Brookline, owned by the defendant Morris Rudnick, hereinafter called the defendant. The equity of redemption conveyed by the plaintiff to the defendant was worth $1,700, she paid $2,000 in cash, and she gave the defendant a note secured by second mortgage for $2,000 upon the real estate on Winthrop road received in the exchange, which note and mortgage passed into the hands of an innocent purchaser and have been paid and discharged by the plaintiff. Thus the real estate on Winthrop road cost her $5,700.

On January 30, 1931, she brought this bill in equity for rescission of the exchange. The defendant had conveyed to an innocent purchaser the real estate on Winchester street, and could not restore it to the plaintiff. After hearing, the judge entered an interlocutory decree establishing the plaintiff's right, upon tender to the defendant of a deed of the property on Winthrop road, to obtain from the defendant by way of rescission $5,700 with interest from June 24, 1930, subject, however, to an accounting of rents and expenses after that date. The case was then referred to a master for an accounting of rents and expenses, as to which no question arises. After the confirmation of the master's report, a final decree was entered on March 22, 1932, ordering the defendant, upon tender by the plaintiff of a deed reconveying the equity of redemption in the property on Winthrop road, and of a balance amounting to $392.63 due to the defendant upon the accounting, to pay to the plaintiff the sum of $5,700 with interest from June 24, 1930; and providing that in default of tender within thirty days after the entry of final decree, the bill shall be dismissed.

The defendant appealed from the interlocutory decree establishing the right to rescission, and from the final decree. The evidence before the judge, and his report of material facts, are before us. His findings of fact, as well as his rulings of law, are open for review, but his findings based upon oral evidence will not be overturned unless plainly wrong. Berman v. Coakley, 257 Mass. 159, 162, 153 N. E. 463. The judge found that the plaintiff was induced to make the exchange by false representations, made by the defendant as of his own knowledge with intent that the plaintiff should act upon them, to the effect that the rents stated in leases given by a former owner of the equity of redemption to tenants of the property on Winthrop road were the rents actually being received, whereas in truth the rents received were substantially less. This finding, though contrary to testimony for the defendant, had ample support in the evidence. These representations were material (Mignault v. Goldman, 234 Mass. 205, 125 N. E. 189;McCarthy v. Reid, 237 Mass. 371, 372, 129 N. E. 675, 12 A. L. R. 1000;Rykiel v. Sklaver, 259 Mass. 608, 156 N. E. 842), even though the foreclosure of a mortgage having priority over the leases and the purchase by the defendant at the foreclosure sale had made the leases ineffective against the defendant or the plaintiff. The plaintiff, in the exercise of reasonable...