Younker v. Pacelli

• Decision Date: 02 December 1968
• Citation: 354 Mass. 738,242 N.E.2d 141
• Parties: William E. YOUNKER et al. v. Gerald PACELLI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 141

242 N.E.2d 141

354 Mass. 738

William E. YOUNKER et al. v. Gerald PACELLI.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 10, 1968.

Decided Dec. 2, 1968.

James F. Fitzgerald, Jr., Cambridge, for plaintiffs.

C. A. Peairs, Worcester, for defendant.

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

WILKINS, Chief Justice.

In this suit in equity for the specific performance of a written contract for the sale of real estate the final decree was for the plaintiffs. The defendant appealed. The trial judge filed a statement of the material facts found by him. G.L. c. 214, § 23. The evidence is reported.

These facts are found by the judge or by ourselves. Lowell Bar Assn. v. Loeb, 315 Mass. 176, 178, 52 N.E.2d 27; Counelis v. Counelis, 315 Mass. 694, 696, 54 N.E.2d 177. This residential property is located at 111--113 Thorndike Street, Cambridge. The defendant lived on that street, as did Damian Percoco, a real estate broker, in whose hands the defendant placed the property for sale. As a result, on January 11, 1966, the contract was executed between the plaintiffs, husband and wife, and the defendant, who could not read nor write, and who signed by mark.

The contract contained the following provisions, among others: 'It is expressly agreed that, notwithstanding any other provisions of this agreement, the Buyer shall not be obligated to complete the purchase of the premises described herein or to incur any penalty by forfeiture of deposits or otherwise unless the Seller has delivered to the Buyer a written statement issued by the Federal Housing Commissioner setting forth the appraised value of the premises for mortgage insurance purposes of not less than $28,000, which statement the Seller hereby agrees to deliver to the Buyer promptly after such appraised value statement is made available to the Seller. The Buyer shall, however, have the privilege and option of proceeding with the consummation of this agreement without regard to the amount of the appraised valuation made by the Federal Housing Commissioner.

'Said premises are to be conveyed on or before February 26, 1966 by a good and sufficient Quitclaim deed of the Seller, conveying a good and clear title to the same, free from all encumbrances, except: * * *.

'The deed is to be delivered and the consideration paid, if the purchaser so requires, at the Registry of Deeds in which the deed should by law be recorded, on February 15, 1966 at 11:45 A.M. unless some other place and time should be mutually agreed upon. * * *

'This agreement is contingent on the Buyer obtaining a conventional mortgage of $25,400.00, at his terms or obtaining an F.H.A. mortgage in accordance with the 'Amendment to Sales Contract.'

Immediately after signing the agreement the plaintiffs took steps to obtain mortgage financing. They and the broker discussed such a loan with several banks, and applied for an F.H.A. mortgage, so called, at one or more banks. When they had not obtained the required financing by February 26, 1966, the broker reported their difficulties to the defendant. The parties then executed a written extension of the time for performance until April 28, 1966, the defendant again signing by mark.

The plaintiffs continued their efforts to obtain mortgage financing, a fact which the broker made known to the defendant. Among their applications was one which was made on March 23, 1966, to the Cambridgeport Savings Bank for a G.I. mortgage loan of $24,900. It was duly processed by the bank, but final action was not taken by April 28, 1966. On several occasions about that date the broker reported to the defendant as to the progress of the plaintiffs' efforts and their pending applications and told him that a second extension would be needed. The defendant replied that there was no such need; that he just wanted the plaintiffs to continue their efforts so that they could close the deal and get it over with. The broker informed the plaintiffs of that conversation and their efforts continued. On at least one occasion thereafter the defendant inquired of the broker as to the status of the mortgage financing, again saying he wanted to get the deal closed.

On or about May 12, 1966, the Cambridgeport Savings Bank approved the plaintiffs' application and sent its attorney a memorandum for checking the title and for the preparation of papers for closing the transaction. The attorney did what was required of him, and about June 1 informed the broker that he would be ready to pass papers at the attorney's office at a specified time on June 3. The broker requested the attendance of the defendant, who said he did not know whether he would be there. The plaintiffs and the broker appeared at the appointed place and time, but neither the defendant nor any other person in his behalf did so.

The judge concluded that the plaintiffs were ready,...