310 Mass. 704 | Mass. | 1942
The plaintiff’s bill alleges, in substance, that the deed of a parcel of real estate in Worcester was taken in the names of the parties as tenants in common, with the agreement that the conveyance to the defendant, although absolute in form, was as collateral security and was intended by the parties as an equitable mortgage; that the deed was security for the promise of the plaintiff to pay a note of the defendant for $1,500, and also to pay him $1,500; that the plaintiff paid the note, paid the defendant $1,000 and tendered him the further sum of $500 which he had refused to accept. There was a prayer that the defendant be required to execute and deliver a deed of his interest in the real estate to the plaintiff.
The defendant set up in his answer counterclaims against the plaintiff, the plaintiff’s wife and a corporation. (Rule 32 of the Superior Court [1932].) The new parties answered to the counterclaims, but before they had done so, the suit was referred to a master. The allegations in the counterclaims will be dealt with later.
1. The master found, with reference to the allegations in the plaintiff’s bill, that the parties agreed to purchase the real estate as joint owners and that the deed was taken in their names as tenants in common; that the transaction did not amount to an equitable mortgage; that the defendant agreed orally that he would convey his interest to the plaintiff for $3,000; that he received $1,000 in cash and, as a part of the transaction, the defendant’s note for $1,500, upon which the plaintiff was an accommodation indorser, was surrendered and cancelled by the substitution of the plaintiff’s note; that the plaintiff tendered the $500 “due to the defendant,” but that the latter refused to execute the deed unless other matters, to which reference is hereinafter made, were “straightened out.” By the terms of paragraph 1 of the final decree, the plaintiff is ordered to pay the defendant $500 and to deliver to him the note for $1,500 (that was cancelled) upon tender by the defendant to him of a quitclaim deed of his interest in the premises in question. There are further provisions that the defendant, upon such conveyance, shall be under no further obligations to the plaintiff with reference to said real estate.
It is an elementary rule that relief in equity is limited by the allegations contained in the bill. Seder v. Kozlowski, 304 Mass. 367, 369. That part of the decree now under consideration grants affirmative relief to the defendant. The defendant answered the plaintiff’s bill. The statute of
2. One allegation of the defendant’s counterclaim is, in substance, that he and the plaintiff own a farm as tenants in common, title to which was taken with the agreement of the plaintiff that, at any time the defendant should so
The plaintiff contends that there is no finding that the defendant offered to perform his part of the agreement or that he was ready, able and willing to do so, or that the plaintiff refused to perform his part. We think it follows from the finding that the defendant requested the plaintiff to carry out the agreement, that he not only demanded performance, but that he also was ready and willing to perform. These conclusions are also borne out by the finding of the master that the defendant refused to execute a deed of the real estate in Worcester “unless the . . . [farm] and the insurance business should also be straightened out.” We are also inclined to the opinion that the master’s findings warrant the conclusion that the defendant was able to give a deed of his interest in the farm. Compare Strumskis v. Tilenas, 268 Mass. 550.
In a transaction of this character, the conditions are concurrent and mutually dependent. Hunt v. Bassett, 269 Mass.
The answer to the counterclaim is entitled: “Answer of the Defendants, Worcester Insurance Agency, Inc. and Stella Ciborowski, to Defendant’s Counterclaim.” Each paragraph of the answer, except 7, 13 and 18, begins with the words “These defendants.” So much of the answer as relates to the allegations of the counterclaim relative to the farm transaction is that “These defendants have no interest with any of the allegations contained in this paragraph.” Paragraphs 7 and 13, however, purport to be the answer of the plaintiff and his wife. Therein they admit the oral agreement to convey the stock of the corporation, but plead the statute of frauds, and say that they are willing to cause to be transferred to the defendant the additional two hundred shares of stock upon payment of the amount agreed upon. The answer is signed merely by the attorneys. By the rules of the Superior Court, a counter
Inasmuch as the defendant has failed to establish any refusal of the plaintiff to perform his agreement relative to the farm, see Grant v. Pizzano, 264 Mass. 475, 480, and cases cited, there was error in including paragraph 2 in the decree.
3. Another allegation in the defendant’s counterclaim is, in substance, that the plaintiff agreed
4. The sixth paragraph of the decree ordered the plaintiff and his wife to account to the defendant for all operations of the business of Worcester Insurance Agency, Inc., from June 5,1940, to the date of the decree. The defendant contends that this order is warranted on the basis of a stipulation filed by the parties after the commencement of the suit. This stipulation is not printed in the record, although it does appear in the copies submitted by the county clerk of courts. Just why this paragraph is incorporated in the decree does not appear. The defendant, in his counterclaim, did not ask specifically for any such relief. He did ask that his damages be assessed because of the plaintiff’s wrongful seizure of the books and assets of the corporation and the wrongful refusal of the plaintiff to allow the defendant to continue his duties with the corporation. It is true that in his counterclaim he alleged that
5. By the eighth paragraph of the decree, the plaintiff and his wife are perpetually enjoined, in effect, from taking away, or attempting to take away, any of the business of the corporation and from interfering in any manner with its conduct, and by the ninth paragraph, the plaintiff is enjoined from engaging in any insurance business in the city of Worcester which competes with the business of the corporation. The plaintiff makes no contention as to the terms of paragraph 8, but his wife contends that she ought not to be so enjoined, and, for reasons already stated, we are of opinion that her contention must be sustained. The defendant’s counterclaim was amended by alleging that the plaintiff agreed that, upon consummation of the purchase of the stock, he would not thereafter interfere with the good will of the corporation, nor engage in the insurance business in the city and county of Worcester. There is no finding of the master as to this allegation. He finds the terms of the agreement in the earlier part of his report. In his summary of findings he states that there was a
The counterclaim should be dismissed as to the corporation with costs.
The decree as modified in accordance with this opinion is affirmed.
Ordered accordingly.
The allegation, in the counterclaim was that "the plaintiff entered into a verbal agreement” to the effect described. — Reporter.