Siegel v. Knott

• Decision Date: 26 June 1944
• Citation: 55 N.E.2d 889,316 Mass. 526
• Parties: SIEGEL et al. v. KNOTT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

316 Mass. 526

55 N.E.2d 889

SIEGEL et al.

v.KNOTT.

Supreme Judicial Court of Massachusetts, Suffolk.

June 26, 1944.

Action of contract or tort by Israel Siegel and another, as trustees of a trust owning certain realty, against Frank M. Knott, for wrongful foreclosure of a mortgage. From an order sustaining a demurrer to the declaration, plaintiffs appeal.

Reversed, and demurrer overruled.Appeal from Superior Court, Suffolk County; Swift, Judge.

Before FIELD, C. J., and LUMMUS, QUA, and RONAN, JJ.

M. Rosenthal, of Boston, for plaintiffs.

J. H. Devine, and J. R. Spence, both of Boston, for defendant.

RONAN, Justice.

This is an action of contract or tort to recover damages for an alleged wrongful foreclosure of a mortgage. The plaintiffs allege that they, as trustees of a trust which owned certain premises in Boston subject to a first mortgage held by a bank and a second mortgage held by the defendant, made an oral agreement with the defendant in February, 1939, by which the plaintiffs agreed to pay the interest monthly upon the first mortgage, although by the terms of that mortgage interest was payable quarterly, and the defendant agreed that monthly payments on his second mortgage might be made at any time before the next succeeding monthly payments became due, that the payments by the plaintiffs for interest to the first mortgagee, for taxes and for a stoker, which were to be made monthly, might be paid before the next succeeding payments became due, and that the plaintiffs might pay the water charges as best they could provided all such charges were paid in full before the end of 1939. The declaration further alleged that the parties acted under such agreement until May 31, 1939, when, although there was no breach of the agreement by the plaintiffs, the defendant, in violation of the agreement which was then existing, took possession of the mortgaged premises and caused the plaintiffs the loss of their property. A demurrer, which alleged that the declaration did not set forth a good cause of action and that the plaintiffs were barred by the statute of frauds from enforcing the agreement, was sustained. The plaintiffs appealed from the order sustaining the demurrer.

Although the order does not show on which of the grounds assigned the demurrer was sustained, all grounds stated are open on this appeal. Arena v. Erler, 300 Mass. 144, 14 N.E.2d 110;Becker v. Calnan, 313 Mass. 625, 48 N.E.2d 668. If the declaration upon its face shows that the cause of action alleged is based upon an oral agreement which is unenforceable by reason of the statute of frauds, the defence of the statute may be pleaded by demurrer. Denvir v. North Avenue Savings Bank, 290 Mass. 137, 194 N.E. 836;Weiner v. Lowenstein, 314 Mass. 642, 51 N.E.2d 241. The function of a demurrer is to test the sufficiency of the pleading against which it is directed and, its scope being thus limited, we cannot in considering a demurrer go beyond the allegations contained in that pleading. We must accordingly lay to one side matters that the defendant contends arose in previous litigation between the parties touching in some respects the agreement upon which the present action is based. Nothing in reference to such matters appears upon the face of the declaration and they are not open upon a demurrer. Fay v. Boston & Worcester Street Railway, 196 Mass. 329, 336, 82 N.E. 7;Peters v. Equitable Life Assurance Society, 200 Mass. 579, 588, 86 N.E. 885;Miller v. Aldrich, 202 Mass. 109, 113, 88 N.E. 441,132 Am.St.Rep. 480;Keith v. Haywood Boot & Shoe Co., 255 Mass. 321, 325, 151 N.E. 309;City of Revere v. Blaustein, 315 Mass. 93, 51 N.E.2d 772.

The declaration sets forth with sufficient certainty the making of an oral agreement by which, in consideration of the plaintiffs making certain payments to the first mortgagee and to others in the manner alleged, the defendant agreed that the plaintiffs should have the right to make monthly payments upon the second mortgage, which was held by the defendant, at any time before the next succeeding monthly payments became due. What the defendant promised to do, in so far as payments on his mortgage were concerned, was to grant a thirty-day period of grace on the monthly payments due from the plaintiffs. The oral agreement merely changed the method by which the plaintiffs had undertaken to pay their mortgage indebtedness. The declaration, we think, fairly shows the modification of an existing agreement, the terms of which were carried out by the parties for several months when the defendant broke this agreement and took possession of the mortgaged premises. The allegations of the declaration set forth a cause of action within the general principle that the mode of performance required by a written contract may be varied by a...