323 Mass. 662 | Mass. | 1949
On July 29, 1944, the plaintiff conveyed a parcel of real estate in Boston, on which there was a two hundred fifty car garage, to the defendant Moses. At the time of the conveyance Moses gave to the plaintiff, as part of the purchase price, her note in the sum of $122,500, and a mortgage of the property as security therefor. The note was to be paid “in or within” ten years from date and bore
A controversy having arisen between the parties as to when “the cessation of hostilities with Germany and Japan” occurred within the meaning of those words in the agreement, the plaintiff brought these proceedings for declaratory relief. See G. L. (Ter. Ed.) c. 231 A, as inserted by St. 1945, c. 582, § 1. The facts are not in dispute. The judge, after finding the facts as above stated, ruled that the expression “'cessation of hostilities with Germany and Japan” in the agreement “means at such time as Germany and Japan shall have formally surrendered,” and that the payments of interest at the increased rate of three per cent and the monthly payments of principal were to commence six months after September 2, 1945. From a decree entered in accordance with that ruling, the defendant appealed. The evidence is reported.
The decree was right.
The defendant conceded that the expression “cessation of hostilities” in the agreement does not mean the ending of the technical state of war that exists during the period between the surrender on the field of battle and the formal termination of the war by treaty or otherwise. See Hijo v. United States, 194 U. S. 315, 323; Hamilton v. Kentucky
On December 31, 1946, the .President issued a proclamation in which he stated that although a state of war still existed it was now possible and in the public interest to declare that hostilities had terminated. Accordingly he proclaimed “the cessation of hostilities of World War II, effective at twelve o’clock noon, December 31, 1946.” 12 Fed. Reg. 1. Obviously, the purpose of the proclamation, which set an arbitrarily selected date, was to fix a definite termination date for numerous war time statutes. See Arroyo v. Puerto Rico Transportation Authority, 164 Fed. (2d) 748 (C. C. A. 1); 47 Col. L. Rev. 255, 261. It has no relevancy here.
If the question involved here depended on whether a state
Support for this conclusion may be found in several recent cases. Colonial Hotels, Inc. v. Maynard, 158 Fla. 318. Rupp Hotel Operating Co. v. Donn, 158 Fla. 541, 548. Glantz v. Willow Supply Co. 139 N. J. Eq. 523, 525-526. Michael Tuch Foundation, Inc. v. C. Hazelcorn, Inc. 187 Misc. (N. Y.)
The court in the Samuels case, as we do here, interpreted the words under consideration in the light of the circumstances in which the contract was made. It is not inconceivable that in other circumstances these words might have a different meaning. See note, 168 A. L. R. 173. We are not called upon to decide whether within the meaning of the agreement hostilities came to an end on August 14, 1945, rather than on September 2 (as the decree states) when the formal Japanese surrender took place. The plaintiff has not appealed from the decree (see Coe v. Coe, 313 Mass. 232, 234) and it has conceded in open court that hostilities did not cease prior to September 2, 1945.
Decree affirmed with costs.
See House Document No. 282, 79th Congress, 1st Session, page 9. See also in the same document letter of the Attorney General to the President (pages 49-50) and the compilation of the various war time statutes annexed thereto.