Wilkins v. Berkeley Realty Corp.

• Decision Date: 26 February 1942
• Citation: 311 Mass. 148,40 N.E.2d 263
• Parties: WILKINS v. BERKELEY REALTY CORPORATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

311 Mass. 148

40 N.E.2d 263

WILKINS

v.BERKELEY REALTY CORPORATION.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 26, 1942.

Bill in equity by Smith P. Burton, Jr., against the Berkeley Realty Corporation for an accounting. From a decree for plaintiff, defendant appeals. Pending the appeal plaintiff died, and on motion allowed by the Supreme Judicial Court, Raymond S. Wilkins, special administrator of the estate of Smith P. Burton, Jr., deceased, was substituted as plaintiff.

Decree modified, and as modified, affirmed.Appeal from Superior Court, Suffolk County; Baker, Judge.

Before FIELD, C. J., and DONAHUE, QUA, DOLAN, and RONAN, JJ.

S. DeBard and S. H. Babcock, both of Boston, for plaintiff.

C. M. Rosenfelt and H. Sesnovich, both of Boston, for defendant.

DOLAN, Justice.

This is a bill in equity in which Smith P. Burton, Jr., sought an accounting by the defendant to establish and recover from the defendant the amount due from it under a written agreement. The case comes before us upon the appeal of the defendant from the decree entered by the judge. Pending the appeal the plaintiff died and upon motion allowed by this court the special administrator of his estate was substituted as plaintiff. The deceased will be referred to hereinafter as the plaintiff.

Allegations of the bill, admitted by the defendant's answer, disclose that on February 28, 1940, the plaintiff conveyed certain apartment house properties to the defendant. In connection with this conveyance and in consideration thereof a written agreement under seal was executed by the defendant, the terms of which, so far as here material, are as follows: ‘1. The undersigned [the defendant] will satisfy the following liabilities and indemnify Burton and hold him harmless from all loss, damage or liability in connection with: (a) All brokers' commissions on this transaction. (b) Real estate taxes on the above properties previously assessed and unpaid and to be assessed for 1940. (c) All mortgage interest and mortgage principal payments now in arrears. 2. The undersigned will spend not less than Fifteen Thousand Dollars ($15,000) in or within two (2) years from the date hereof in improving and renovating said properties allocated as follows: (a) 220-222-224 Marlborough Street $8,500 (b) 17-19 Exeter Street 4,000 (c) 68 Commonwealth Avenue 2,500 3. The undersigned will use the gross income from the properties to pay current expenses, taxes and mortgage interest in connection with said properties, and it will maintain a reserve out of each month's income sufficient to pay the taxes and mortgage interest when due. 4. The undersigned will render to Burton monthly operating statements of the properties and monthly statements as to the reserve. 5. The undersigned will deed and convey the premises to Burton's nominee upon Burton's written request (sent registered mail to Louis Heller, 18 Tremont Street, Boston) if the undersigned fails to perform any of the above provisions. 6. The undersigned will not sell, convey or assign to any person or persons the whole or any part of the above premises unless such person or persons will assume in writing under seal a contract containing the above provisions.’

The defendant admitted in its answer that it had received the rents from the premises for the months of March and April, 1940, but alleged, in substance, that ‘after the current expenses were paid, there was nothing left’ to apply in accordance with the terms of the agreement. By deed dated April 26, 1940, and duly recorded, the defendant conveyed the premises in question to the plaintiff's nominee, ‘pursuant to paragraph 5’ of the agreement.

The evidence is not reported and the judge filed ‘Findings' in which he found that the gross income from the property exceeded the expenses that the defendant claimed the right to charge to income by the sum of $705.53, and that the ‘plaintiff * * * [was] entitled to recover the same.’ The judge further found that the defendant was not...