Laking v. French, 183 Mass. 9

Laking v. French

183 Mass. 9 | Mass. | 1903

Hammond, J.

This was a writ of entry to recover one undivided half of a certain lot of land. After a trial upon the question whether there had been a breach of condition in the deed, dated February 24, 1890, of the whole lot from Mahala C. Taking to Frederick J. H. Taking, under which, as heir to the grantee, the tenant claimed title to the whole, and after a finding by the court in favor of the demandant, the tenant filed a motion offering to pay to the demandant all sums of money which she ought to pay by reason of the failure to perform the condition, and the demandant’s taxable costs; and she prayed that all further proceedings be stayed, alleging that the failure to perform the condition was not wilful, but was caused by accident and mistake. Upon this motion the case was referred to an assessor, to ascertain the damages due the demandant and the sum to be allowed the tenant for improvements, also to hear the parties and report to the court whether the failure to perform the condition in the deed “ was caused by accident and mistake and was not wilful.” His finding on both points was to be subject to revision by the court.

Upon the coming in of the report the demandant moved that it be recommitted, because, against the demandant’s objection, the assessor had admitted certain evidence tending to show a waiver by the said Mahala of the breach of the condition, the demandant contending that the question of waiver had already been settled by the finding of the court. This motion *12was overruled, and the demandant excepted. It is plain from the report that this evidence was not admitted as bearing upon the question of waiver, but simply as bearing upon the good faith of the tenant in the failure to fulfil the condition, and that it was considered only in the latter view by the assessor. The demandant should take nothing by this exception.

The case was then submitted to the court on the tenant’s motion for a stay of judgment and on the assessor’s report. The judge refused to give certain rulings requested, and ordered that, upon the payment by the tenant to the demandant of the sum named by the assessor as damages by reason of the failure fully to perform the condition in this deed, together with costs of suit, within a certain time, all further proceedings should be stayed. To the refusal to rule as requested and to the order staying the proceedings the demandant excepted.

The condition in the deed was that the grantee “ will assume and pay a certain note which I signed and endorsed, agreeing to pay Dr. H. M. Hunter the sum of seven hundred dollars for the benefit of my son-in-law, Alfred B. Baking, if he, said Alfred B. Baking, should neglect or fail to pay the same.” At the date of this deed a note like that described in the condition existed (except that the amount was $900), was outstanding, and bad been overdue several years. The note was not paid by the grantee in the deed, and judgment was obtained on it against the grantor; and the judgment was paid in the manner set forth in the assessor’s report.

Without rehearsing here in detail the facts reported by the assessor, we think that the judge could properly find thereon that the failure to pay the note was not wilful, but was caused in part by a mistake as to the obligation of those claiming under the deed to pay the particular note upon which the suit was brought, to which mistake the acts of the grantor contributed; and in part to a belief that the breach had been waived by the grantor, to which belief also the acts of the grantor contributed; and that the judge who tried the case was justified in coming to the conclusion that the default was not wilful, but was due to an innocent mistake. Stone v. Ellis, 9 Cush. 95, and cases therein cited. It follows that the first ruling requested was properly refused.

For reasons hereinbefore stated with reference to the motion *13to recommit the report, the second and fourth requests were irrelevant. The seventh was also irrelevant because there was no contention at this stage of the case that there had been a waiver. The fifth singles out one of many facts bearing upon the questions involved, and it was within the discretion of the judge whether it should be given. The second and sixth are not correct statements of the law as applicable to the circumstances of a case like this, where the acts of the grantor have contributed to the failure to perform the condition, or to mislead the tenant. See the cases above cited.

Exceptions overruled.