284 Mass. 602 | Mass. | 1933
This is an action of contract to recover on a written instrument and assignment thereof the amount of a betterment assessment levied on certain real estate.
On December 14, 1926, Louville V. Niles entered into an agreement with Max E. Wyzanski and Charles E. Wyzanski whereby Niles agreed to sell and the Wyzanskis agreed to purchase certain real estate in Boston, title to pass February 1, 1927. At the time the sale was to be consummated Wyzanski brought to Niles’s attention a report of the city collector that a street betterment assessment, estimated at $645, would be levied against the estate by reason of the widening and improvement of Dock Square. Niles desired an opportunity of contesting the validity of the assessment, and at the time of passing papers on February 1, 1927, the defendant delivered to the Wyzanskis the following instrument: “Be your agreement with Louville V. Niles dated December 14, 1926, whereby said Niles agreed to convey to you, or to such person as you may designate, estate numbered and assessed as 27-29 on Fulton Street, Boston, Mass, free from all incumbrances except as set forth in said agreement, etc., in consideration of the acceptance by you of a deed of said estate without requiring payment or discharge of the lien created by the betterment assessment of the City of Boston estimated to be of the value or amount of Six hundred forty-five dollars, so as to afford said Louville V. Niles an opportunity to adjust said assessment, which you have this day done at my request, I hereby agree to adjust and pay, or cause to be discharged, the lien created by said assessment within a reasonable time. Yours very truly, HAROLD L. NILES.”
At the request of Wyzanski, Louville V. Niles deeded the estate to William J. Stober who held the title for the
By deed dated September 8, 1927, the plaintiff conveyed the estate to one Wattendorf subject to any betterment assessment. A deed dated September 8, 1927, from Wattendorf to the plaintiff was introduced in evidence. The plaintiff testified that he was the owner of the property and that Wattendorf never had any real interest therein, Evidence was introduced showing that an order for the widening of Dock Square was made September 15, 1925, and that the work was completed August 6, 1927; that the street commissioners found the benefit to this estate as a result of the widening to be $645 on which date said amount was assessed against the property, to be payable January 31, 1928; that thereafter the city apportioned the assessment into ten annual payments of $64.50 each. The plaintiff paid three of these instalments and interest for the years 1928, 1929, and 1930, making a total of $344.12. The instalment for 1929 included $27.27, being the expense of a tax sale in July, 1931, by reason of the failure to pay the 1929 instalment. In August, 1930, the plaintiff demanded that the' defendant pay the betterment assessment but he failed to do so. The amount unpaid is $451.50 with interest from October 1, 1930.
At the trial the plaintiff and the defendant each made certain requests for rulings. The judge refused to rule as requested by the defendant and granted the plaintiff’s requests. The case was reported to the Appellate Division which decided that there was no prejudicial error in the rulings and refusal to rule of the trial judge. From this decision the defendant appealed.
Order dismissing report affirmed.