Tzitzon Realty Co. v. Mustonen

• Decision Date: 07 June 1967
• Citation: 227 N.E.2d 493,352 Mass. 648
• Parties: TZITZON REALTY CO., Inc. v. Henry H. MUSTONEN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 493

227 N.E.2d 493

352 Mass. 648

TZITZON REALTY CO., Inc. v. Henry H. MUSTONEN et al.

Supreme Judicial Court of Massachusetts, Essex.

Argued April 4, 1967.

Decided June 7. 1967.

Henry H. Gove, Haverhill (Charles G. Kadison, Jr., Boston, and Ashode N. Amirian, Haverhill, with him) for defendants.

Jason S. Cohen, Haverhill, for plaintiff.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER and REARDON, JJ.

WHITTEMORE, Justice.

The defendants appeal from a final decree of the Superior Court ordering the conveyance of land in Groveland and Georgetown upon the payment of $42,500. The decree also ordered that the defendants, for stated payments, should have the right to occupy the house on the land conveyed for a period of one year from the date of conveyance. The facts are found in a master's report.

1. There was no error in the denial of the motion to recommit the report. The objections specified findings that the defendants averred should be made and stated that 'the * * * report * * * reaches a conclusion which raises a question of law which depends on evidence not reported.' The statement of objections included a request that the master append a summary of the evidence on which he concluded that an agreement had been reached, especially certain specified testimony not in agreement with his findings. One objection was to the finding that the plaintiff had not been guilty of laches, and requested a summary of the relevant evidence, especially certain evidence specified. The motion to recommit asserted that the master had failed to append required summaries of evidence or to set out all the subsidiary facts upon which his findings were based.

The objections, apart from the issue of laches, assert, in effect, that all the evidence would have required a different conclusion as a matter of law. This appears to be an effort to turn an issue of fact into one of law and thus require that all the evidence in the case be summarized. Rule 90 of the Superior Court (1954) may not be used for this purpose. Minot v. Minot, 319 Mass. 253, 258--259, 66 N.E.2d 5. Even if additional or contradictory evidence, as suggested, had been reported, we see no basis for concluding that it would have, of necessity, controlled the master's findings.

Laches, in most cases at least, is an issue of fact. Hanrihan v. Hanrihan, 342 Mass. 559, 567, 174 N.E.2d 449 and cases cited. Nothing appears in the objections to suggest that a finding of laches was required as matter of law.

Whether there were adequate findings of subsidiary facts was a matter for the judge in the Superior Court. Macera v. Mancini, 327 Mass. 616, 620, 99 N.E.2d 869, and cases cited; Westinghouse Elec. Corp. v. J. J. Grace & Son, Inc., 349 Mass. 664, 668, 212 N.E.2d 213. The motion gave the judge an opportunity to determine whether the master had reported the facts as to disclosed or suggested issues of law. We discern no abuse of discretion in the denial of the motion. Although a finding of more subsidiary facts would have been appropriate we cannot say that this was required as matter of law.

2. The memorandum relied on to charge the defendants, husband and wife, is as follows: 'October 18, 1962 ¹--Groveland, Mass. Received $500 as down (the word payment was written and stricken out) of land (written and stricken out) deposit on a house and land on the corner of School Street and Salem Street South Groveland, Mass. from Tzitzon Realty Co., Inc. in Haverhill, Mass. Signed Henry H. Mustonen.' The issue is whether, in the several aspects next discussed, this was a sufficient compliance with G.L. c. 259, § 1: 'No action shall be brought: * * * Fourth, Upon a contract for the sale of lands, tenements or hereditaments or of any interest in or concerning them; * * * Unless the promise, contract or agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be chargd therewith or by some person thereunto by him lawfully authorized.'

a. The failure to state the consideration.

General Laws c. 259, § 2 provides: 'The consideration of such promise, contract or agreement need not be set forth or expressed in the writing signed by the party to be charged therewith, but may be proved by any legal evidence.' 'This * * * means that the memorandum need not set forth both sides of the bargain.' Fichera v. City of Lawrence, 312 Mass. 287, 289, 44 N.E.2d 779, 780. The undertaking sought to be enforced must be stated but the consideration for that promise need not be. White v. Dahlquist Mfg. Co., 179 Mass. 427, 431, 60 N.E. 791.

The defendants assert that the memorandum should have mentioned not only their obligation to sell the land, but also that they were to occupy the house for one year. We disagree. There was no undertaking by the defendants to occupy the house. Hence the absence of reference thereto was no more significant than the failure to state the money to be paid by the plaintiff. The defendants had been reluctant to include in the sale their residence and two acres of land immediately about it. The master found that they had been persuaded to sell all the land and the house by the plaintiff's undertaking that they 'could remain in the house for one year after the sale by paying the taxes and the interest on $10,000 which * * * (the treasurer) considered to be the value of the house.' Compare Bouvier v. L'Eveque, 324 Mass. 476, 477--478, 86 N.E.2d 915, where there were mutual promises with respect to the tenancy.

b. The description of the land.

The master found that in the course of the negotiations, which extended over a number of months, the male defendant, based on his search at the registry, had compiled a seven page abstract with deed references which described all the land that he and his wife owned in Groveland and Georgetown. He gave this to the plaintiff's treasurer. '(D)uring the discussions * * * both parties intended that any negotiations * * * pertained to all of the land * * * described in these seven (7) pages.' The treasurer told the male defendant that he would refer the seven pages to his attorney for preparation for a title search and he did so.

In the circumstances, the words in the memorandum, 'a house and land on the corner of School Street and Salem Street South Groveland,' reasonably stood, as between the parties, as a shorthand description of the land more fully described in the abstract. This court said in Desmarais v. Taft, 210 Mass. 560, 561, 97 N.E. 96, 'The statute * * * requires a memorandum 'to contain a description of the land sufficient for purposes of identification when read in the light of all the circumstances of ownership of the property by the vendor. * * * Attendant circumstances may be shown outside the writing and by parol for the purpose of interpreting and applying the memorandum.' ...