281 Mass. 498 | Mass. | 1933
These cases are before this court on the appeals by the Boylston & Tremont Corporation (herein called the defendant) from final decrees against The Atlantic National Bank of Boston (herein called the bank) that the bank pay to the plaintiffs George L. DeBIois and another $300,000 and interest, to the plaintiff Stephen W. Sleeper and others $48,000 and interest, and to the plaintiff John Roessle $5,000. The three suits were tried together by the respective plaintiffs to recover the respective sums from the bank and temporarily to restrain the defendant from suing the bank therefor. The bills of complaint sought no judgment or other relief against the defendant. Answers and cross bills were filed by the defendant. These are not interpleaders’ or stockholders’ suits, although the bank is mainly interested in protecting itself against double liability. They in fact are suits whereby the several plaintiffs seek decrees against the bank only, based upon the obligations of these defendants to the plaintiffs. The plaintiffs in the first suit, under a declaration of trust, are owners of the Hotel Touraine property bounded by Boylston, Tremont, LaGrange and Tamworth streets, and of Touraine Annex, so called, on the opposite side of Tamworth Street between Lowell Court and LaGrange Street. The plaintiffs in the second case are trustees under the will of George F. Fabyan, deceased, and as such are owners of lard on the southerly side of Boylston Street. The plaintiff in the third suit is or was the owner of a parcel of land on the northerly side of LaGrange Street.
On December 27, 1928, an agreement, under seal, was entered into between the plaintiffs in the first suit and the defendant for the purchase and sale of the Touraine property. On the same date a similar agreement under seal was entered into between the defendant and Francis W. Fabyan, Stephen W. Sleeper and Charles F. Adams, as trustees under an indenture of trust dated December 29, 1906, but
The agreements of the plaintiffs in the first two cases were made subject to escrow contracts of even date between the sellers, the buyer and the depositary. Each escrow agreement recited in a preamble that the buyer wished to acquire the whole tract, of which a full description was set out, together with its free and unrestricted use as one contiguous parcel, not subject to any easement in the public or others on account of Tamworth Street, Lowell Court, or a certain passageway connected with Tamworth Street, subject to the Boston zoning law, and to party wall agreements of record relating to certain exterior boundaries but free from all other restrictions except the Hotel Touraine lease. It further recited that the buyer had entered into an agreement with the sellers and with other sellers to purchase the whole of the described tract, and that the sellers to effect their respective sales were willing to petition the city of Boston for the abandonment and discontinuance of Tamworth Street. Part I of the escrow agreements recited the deposit of $300,000 in the case of the DeBlois agreement, and $48,000 in the case of the Sleeper agreement, to be held “under and subject to the terms of this escrow agreement.” Part II of these agreements provided that the sale and purchase agreements should be carried out “If on or prior to ninety . . . days from the date hereof (a) The Seller delivers to the Escrow Depositary a deed which will convey when recorded a good record and marketable title,” (b) the “whole tract shall have been surveyed for the Buyer at its own expense,” (c) “The Sellers of certain properties near the property . . . have . . . deposited . . . deeds of the respective parcels,” (d) “The Trustees of the Young Men’s Christian Union shall have made available for record simultaneously with the other deeds . . . either by depositing the same with the Escrow Depositary or otherwise, a deed of the premises,” covered
The sale and purchase agreement of the plaintiff John Roessle came into éxistence as a legal obligation upon his acceptance of a written offer of purchase from Mr. David Stoneman, dated November 20, 1928, which was supplemented by a letter from him dated December 28, 1928. By this acceptance Roessle agreed to sell his land for $50,000 to the defendant and the .defendant agreed to pay Roessle for the property that sum if (1) “Upon the acceptance by . . . [Roessle] of this offer, ten per cent. ... of the purchase price . . . will be deposited together with this offer with ... [a named bank] to be held in escrow”; and (2) the defendant is able to obtain title to the Touraine Hotel property, to the Young Men’s Christian Union property, and to the Fabyan Trust property, all
The escrow agreements have attached to them the proposed selling agreements and provided that if the conditions named in those agreements were met the selling agreements should go into effect, and if those conditions were not met the proposed selling agreements should be null and void. The agreement of the seller and buyer created by the acceptance of the terms of the letter dated November 20, 1928, by Roessle, also became null and void if the conditions there stated were not met. In, either case if the conditions were not met the depositary was by the terms of the agreements or by legal implication bound to cancel the proposed selling agreements and return the moneys to the defendant. The cross bills are based on this alternative. The record does not disclose that the bank ever modified or agreed to the modification of the escrow agreements deposited with it or to the conditions set down in the letter to Roessle, dated November 20, 1928, the terms of which were accepted by him on November 21, 1928.
In January, 1929, the Lawyers Title and Guaranty Company found that the fee to Tamworth Street was in the city of Boston, whereas at the time of sale and purchase agreements it was supposed by all parties in interest to be in the adjoining landowners. In February, 1929, ten taxpayers by suit sought to enjoin the street commissioners from voting to discontinue Tamworth Street. Their petition was denied. See MacDonald v. Street Commissioners, 268 Mass. 288. The time fixed for the passing of papers was extended by duly executed instruments to July 1, 1929, then to October 1, 1929, and finally to December 2, 1929. At last the city council passed a vote on October 28 and another on November 18, 1929, which were approved by the mayor on November 19, 1929, to sell the Tamworth Street property to the defendant for $100,000. By a con
The sale and purchase agreements by the terms of the escrow agreements were to be in full force and effect if the Lawyers Title and Guaranty Company filed a certificate that the sellers’ deeds when recorded would convey a good record title to the whole tract including the fee to Tamworth Street. But if a certificate was filed, as did happen, that these deeds would not convey such a title, then the purchase and sale would be of no effect and void. At the trial and at the hearing before this court the plaintiffs contended that Mr. Davidson’s complete lack of knowledge of the modification of the escrow agreements and his erroneous assumption that there had been no modification of those agreements constituted a mistake so palpable as to prevent the arbitrator from exercising his judgment upon the matter submitted to him. In support of this second position the plaintiffs cite and rely upon Morgan v. Murdough, 216 Mass. 502. It is plain that on the facts that case is not applicable. There the question was whether the plaintiffs were or were not obligated under a building contract to do certain work, the costs of which the defendant was seeking to set off against the plaintiffs’ claim. The architect
The next issue is, Did the defendant consent and agree to a modification of the escrow agreement? The solution of this issue determines the answer to the question, Was
Relative to the title to Tamworth Street and to the modification of the agreements dated December 27, 1928, the judge found on the facts “that no written modification of these agreements was executed by any of the landowners or the defendant.” In this connection it is to be noted that the statute of frauds is not pleaded by the defendants.
It is settled law that an executory, bilateral written contract may be varied by a subsequent oral agreement between the parties, that the contract when modified by the subsequent oral agreement is substituted for the contract originally made, and that the substituted contract is supported by .the bilateral obligation of the substituted contract, if there be such, and by the consideration of the original contract. Thomas v. Barnes, 156 Mass. 581, 584. The trial judge found that “from February, 1929, the parties concerned understood that it would be necessary to get a deed to Tamworth Street from the city of Boston; that from then on the landowners and the defendant cooperated
If the parties supposed, as they did until 1929, that the fee to Tamworth Street was in the abutting owners, then the trustees of the Touraine property were not obliged to convey that part of Tamworth Street that was in the trustees of the Boston Young Men’s Christian Union. To determine the question whether the defendant agreed to a
The trial judge found that the defendant corporation from November 20, 1928, when it was organized, down to and including December 2, 1929, was created and maintained for the sole benefit of and was absolutely controlled and dominated by the Fox Theatres Corporation. The history of the events leading up to the formation of this corporation is as follows: In October, 1928, Alexander Kempner, head of the real estate department of the Fox Theatres Corporation, met at his office in New York City Mr. David Stoneman accompanied by two real estate brokers of Boston. Kempner told them that the Fox Theatres Corporation expressly desired a site for a theater and office building, in Boston, and discussed the availability of the Hotel Touraine site. He later telephoned Mr. Stoneman, in Boston, and said that, after conference with Fox along the line of their discussion, Fox had come to the conclusion that he would prefer to have his company buy or build a theater or office building for itself, in lieu of leasing one. A few days later he authorized Mr. Stoneman to assemble the lots of land involved in this suit, a payment of $4,400,000 being contemplated. “At this time the owners of the properties to be purchased had not been approached and knew nothing of the proposed transaction.” Mr. Stoneman’s commission for his services was to be one third of the regular broker’s commission, to be paid by the landowners. It was agreed between Mr. Stoneman and Mr. Rogers that if the transaction were consummated, Mr. Stoneman should be paid $75,000 for his fees and expenses, and for all other incidental work the Fox interests would have in Boston in connection with the enterprise. Mr. Stoneman and the real estate broker thereupon commenced negotiating with the real estate owners. Kempner sent an associate, one Gold-stein, to Boston with instructions to have Mr. Stoneman acquaint him with the location, the owners, all details, surveys, building plans, building laws and the like. Thereafter Mr. Stoneman, at the request of Goldstein and Kemp
The purpose for which the defendant corporation was formed as stated in general in the agreement of association, is “To acquire by purchase . . . or otherwise, lands or any interest therein; to erect and construct houses, buildings or works of every description . . . and generally to deal with and improve the property of the company.” Art. XII of the by-laws reads: “The property and business of the Company shall be managed by the Board of Directors who shall be chosen annually from the common stockholders and shall hold office until others are chosen and qualified in their stead.” Art. XVII reads: “The board of Directors shall
Upon all the evidence reported and upon the facts specially found by the trial judge, it is clear that Mr. Rogers was fully authorized to speak for both the defendant and the Fox Theatres Corporation in connection with the terms upon which the Tamworth Street property was to be acquired. With respect to Mr. Stoneman’s position as a representative of the Fox Theatre interests and of the defendant, the trial judge was warranted by the evidence in finding that his position in these transactions “was somewhat anomalous.” He states that “When these transactions commenced . . . [Mr. Stoneman’s] position was that of a broker or promoter and he was to be paid for his services by a commission from the landowners if, and when, the transaction was consummated, although he was first employed by the Fox Theatre interests to obtain the properties.” Mr. Stoneman was also employed by the Fox Theatre interests to attend to the passage of votes through the city government or various departments and other matters of various kinds. “Mr. Stoneman was in fact authorized by the officials of the Boylston & Tremont Corporation to handle the negotiations with the city in respect to Tamworth Street except that he was not authorized to finally determine the terms on which the fee of Tamworth Street was to be acquired and that what he did in that matter was authorized except in respect to the offer contained in the letters of September 13 and 28, [1929] to the mayor.” The trial judge further states: “Neither Mr. Rogers nor Mr. Robbins notified the city authorities that the offer contained in the letters of Mr. Stoneman to the mayor of September 13 and 28 was unauthorized. I find that they ratified it by their action so far as the city was concerned, that the city authorities were warranted in believing that the acts of Mr. Stoneman relative to the Tamworth Street matter were within his apparent and ostensible authority as acting for the Boylston & Tremont Corporation, except that the terms qf the arrangement with the city were to be ratified by the Fox Theatre interests in New York and
The trial judge found that when the transaction commenced the position of Mr. Stoneman was that of broker or promoter, and as matters progressed he was employed to represent the Fox Theatre interests. While Mr. Stoneman was speaking to the city council on October 11, 1929, in the presence of the sellers he stated that his position was that of a promoter of the project. If Mr. Stoneman was a broker or promoter he was without authority to bind his principal beyond the terms of the specific authority conferred on bim and those dealing with him had to ascertain the bounds of his authority at their peril. Snow v. Perry, 9 Pick. 539. Mussey v. Beecher, 3 Cush. 511. Stollenwerck v. Thacher, 115 Mass. 224. Norton v. Nevills, 174 Mass. 243. Harrigan v. Dodge, 216 Mass. 461. The trial judge found that while Mr. Stoneman was in fact authorized by officials of the Boylston & Tremont Corporation to handle the negotiations with the city in respect to Tamworth Street, he was not authorized finally to determine the terms on which the fee of Tamworth Street was to be acquired. After Mr. Stoneman on September 28, 1929, wrote the mayor making
The finding by the trial judge that the landowners relied on the statement of Mr. Stoneman was not justified by the evidence. The sellers knew that Mr. Stoneman’s interest was in one third of the broker’s commission to be paid by the plaintiffs and in the contingent compensation to be paid by Fox Theatres Corporation. They knew that his position primarily was that of a promoter; that he could not bind the defendant to do anything; and that anything he did was done to enable the plaintiffs to perform their agreements of sale. The landowners were the ones who petitioned for the discontinuance of Tamworth Street and they were the ones who agreed to acquire from the city the fee of Tamworth Street. Before Mr. Stoneman made the city an offer for this land he had arranged with the plaintiffs for the purchase by them with their money. No one other than the plaintiffs had authorized the offer. The plaintiffs were notified that the defendant did not know that any offer was being made in its name. On October 11 and October 30, 1929, by letters dated October 4, 1929, from the plaintiff DeBlois and the plaintiff Sleeper, respectively, addressed and delivered to the Tremont & Boylston Corporation, the sellers declared that the “negotiations in the name of the Boylston and Tremont Corporation have been without authority. . . . Mr. Stone-man’s action is really a short cut for the benefit of the
As respects the authority of Mr. Robbins to act for the defendant, the trial judge found that “There was no vote by the directors or stockholders of the Boylston & Tremont Corporation prior to December 2, 1929, authorizing Mr. Robbins to act for it. He was not authorized to make real, substantial changes in the contracts of purchase and sale or the escrow agreements without consulting the Fox Theatre interests in New York .... that Mr. Robbins neither said nor did anything that he was not authorized
As regards the case of John Boessle, it appears that he did not sign and was not bound by the escrow contracts to which the other plaintiffs were subject. The defendant’s offer to him Was conditional on its ability to obtain title to the Touraine, Boston Young Men’s Christian Union and Fabyan properties, and its ability to obtain from the city a release of all rights in Tamworth Street so that that street could be used for building or any other purpose. The defendant, if it desired, could have obtained title in the manner contemplated at the time of this agreement. The decree in favor of John Boessle must be affirmed.
In the view we have taken of the disposition to be made of these cases it is unnecessary to determine whether the agreement under seal of the trustees under the indenture would be satisfied by a conveyance of the same land under
About eighty exceptions have been saved in the record — first to the admission of conversations contended to be inadmissible against the defendant; second, to the exclusion of evidence of expressed lack of authority; third, to certain findings on the ground that they are not warranted by the evidence; and fourth, to the rulings of law made on the facts found. We have examined those argued and treat the others as waived. Guinan v. Famous Players-Lasky Corp. 267 Mass. 501, 519.
It results that the final decree in the suit brought by George L. DeBlois et al. is reversed; that the final decree in the suit brought by Stephen W. Sleeper et al. is reversed; that the final decree in the suit brought by John Roessle is affirmed with costs; and that a final decree is to be entered adjudging and decreeing that The Atlantic National Bank of Boston now holds said deposit of $300,000 and the said sum of $48,000 in trust for the sole benefit of the defendant corporation; and that The Atlantic National Bank of Boston shall forthwith pay over said sums with interest at one and one half per cent per annum from December 2, 1929, to the date of payment and shall pay to the defendant corporation a sum equivalent to interest at three per cent per annum on $300,000 from December 27, 1928, to December 2, 1929, and likewise on $48,000 from December 27, 1928, to December 2, 1929, after deducting therefrom for its expenses and charges a sum in each case to be determined in the Superior Court; and it is further ordered, adjudged and decreed that the defendants in the cross bills, George L. DeBlois et al. and Stephen W. Sleeper et al. shall pay to the plaintiff- costs'- to be taxed in the "Superior Court, and that thereupon and therefor execution shall issue forthwith.
Decree accordingly.