Williams v. Whitinsville Sav. Bank
| Decision Date | 27 June 1933 |
| Citation | 186 N.E. 502,283 Mass. 297 |
| Parties | WILLIAMS v. WHITINSVILLE SAV. BANK. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; E. T. Broadhurst, Judge.
Action by Arthur Williams, trustee, against Whitinsville Savings Bank. A verdict was directed for defendant, and plaintiff brings exceptions.
Exceptions overruled.
A. Williams, of Boston, for plaintiff.
H. W. Brown, of Boston, for defendant.
This is an action of contract or tort in which the plaintiff seeks to recover $3,000, the balance unpaid and remaining to be advanced by the defendant on a mortgage note, or for damages in that amount for having alienated or released the real estate held as security therefor, for less than the face of the note. The defendant's answer is a general denial. The case was called for trial and a jury was impanelled. The trial judge on motion of the defendant directed a verdict in its favor at the close of the plaintiff's opening statement to the jury. To this direction the plaintiff excepted. One Roscoe, a builder, borrowed money from the defendant on a construction loan mortgage in 1927. It was agreed that the bank was to advance $11,000, the total amount of the loan payable in instalments as the building reached various stages of completion, and $8,000 was so advanced under this agreement. Roscoe, after the first mortgage was given to the defendant bank, placed a second mortgage on the property to a third person for $1,500. During the construction of the building the second mortgagee foreclosed his mortgage. The notice of foreclosure sale recited that the property would be sold subject to the first mortgage of $11,000. At the time of the foreclosure sale the house was not completed and the builder, who in the meantime became bankrupt, was in default. There were two instalments to be paid by the first mortgagee but those instalments were not paid because the builder had stopped work on the house. The property was sold at the foreclosure sale under the second mortgage for $1,500 to a purchaser who was not the owner, mortgagor, or any one connected with the bank or with the second mortgagee. This purchaser, having completed the building, made the following arrangement with the bank: the bank discharged the first mortgage and took a new mortgage from the purchaser for $11,000, crediting the $8,000, previously advanced to Roscoe, and advancing to the purchaser the sum of $3,000. The plaintiff, as trustee in bankruptcy of the estate of Roscoe, seeks in this action to recover from the defendant the difference between the first mortgage of $11,000 and $8,000 actually advanced to Roscoe under the construction loan agreement, contending that upon completion of the building the bank was obliged to pay that difference of $3,000 to him.
In the colloquy at the bench during which the plaintiff stated his case to the court, it was admitted by the plaintiff that when Roscoe was adjudged bankrupt he had ceased work on the building and...
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