Zaltman v. Daris
| Decision Date | 08 June 1954 |
| Citation | 120 N.E.2d 393,331 Mass. 458 |
| Parties | ZALTMAN v. DARIS et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Samuel Katzman, Stoughton (Irwin Springer, Boston, with him), for plaintiff.
John C. Johnston, Boston (Melvin J. Levine, Boston, with him), for defendants.
Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.
The plaintiff, a contractor engaged in the construction of houses, alleges in his bill that he entered into an agreement on or about June 22, 1948, with the defendants David J. Daris and his wife Doris F. Daris, hereinafter called the defendants, 1 for the construction of a house for them upon land owned by him; that he proceeded with the work of construction; and that he received from the defendants advances of $2,500 and $1,400, respectively, for materials furnished and labor supplied in the construction for which he gave David J. Daris his promissory note for $3,900, as a receipt or evidence of these advance payments on account, which was to be returned to the plaintiff upon completion of the construction and upon the final payment being made by the defendant. It was also alleged that the defendants on May 9, 1949 advanced the further sum of $1,000; that the plaintiff gave David J. Daris his note for $4,900 which was to be held by him upon conditions similar to those relating to the $3,900 note; that at the time of these advances the plaintiff had expended for materials and labor in the construction of the house a sum in excess of the advances; and that the defendants repudiated their agreement on or about May 24, 1949, and within a few days an action was commenced upon the $4,900 note. The bill sought an injunction restraining prosecution of the action upon the note, and prayed that the defendants be ordered to deliver it to the plaintiff; that the rights of the parties be determined with reference to the building agreement and the purchase and sale of the house; that the amount due from the defendants be determined; that they be ordered to pay said amount to the plaintiff; that they be ordered to take a conveyance of the house and land; and that damages be awarded the plaintiff.
The plaintiff appeals from a final decree dismissing the bill as to all three defendants.
In the equity case, we have no transcript of the evidence but we have a report as amended of the material facts found by the judge. We point out the salient facts so reported. Zaltman intended to build a house for the defendants and they, expecting that he would do so, advanced money to him and took his promissory note. If the house was built, the money advanced would be credited to them and 'the note [for $4,900] which they held would be cancelled.' The first agreement between the plaintiff and the defendants was dated June 22, 1948. Nothing turns on this agreement because it was waived in open court by both parties at the trial. Between June 22, 1948, and May 17, 1949, the parties frequently conferred in an endeavor to make an arrangement that would be satisfactory to them; 'there were proposals and counter-proposals; forms of agreements were reduced to writing; none was executed; none was filed; none was offered at the trial as an instrument of agreement; no suggestion was made at the trial that any of the in-between discussions or writings represented or was a contract binding upon the parties.' The last agreement, dated May 17, 1949, was signed by Zaltman and was acceptable to the defendants but not signed by them. It expressly provided that it contained the entire agreement between the parties except that Zaltman was to be retained as a builder in accordance with a construction agreement which was to be drafted. It also provided that the premises were to be conveyed to the defendants on or before May 24, 1949, subject to a first mortgage, and that the second mortgage was to be discharged before the conveyance. The sale price was $4,900, the receipt of which was acknowledged, and the note held by David J. Daris was to be returned to Zaltman. The parties arranged to meet at the registry on May 24, 1949. The defendants were there at the appointed time and remained until the registry closed. They were prepared to carry out their part of the agreement. The met Zaltman on the street between 5:15 and 5:30 P.M. He had been busy in attempting to secure a discharge of the second mortgage. He told the defendants that he hoped that later in the day or the next day they could arrive at some arrangements suitable to both. The defendants said they were through. Within a few days David J. Daris brought action on the $4,900 note. The judge found that there was no excuse for...
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