270 Mass. 193 | Mass. | 1930
The defendant owned a mortgage made by one Charette upon premises subject to prior mortgages to a bank for $9,000, to one Driscoll for $28,000, and to one Desautels for $5,000. As to one parcel it was a second, and as to another it was a third mortgage. It contained an agreement by which Pittle guaranteed the performance
There was evidence that the defendant to the plaintiff’s knowledge desired to get rid of the agreement of guaranty in the mortgage; that he sought advice whether an assignment would release him, and was told by his counsel that a simple assignment of the mortgage probably would not; that the last sentence of the written agreement was in long hand, while the rest was typewritten; and that the plaintiff had represented that the words “ as is” in that sentence would take care of the guaranty, and the plaintiff took subject to the lease.
The defendant offered to show that orally the plaintiff agreed to take over the guaranty of the lease contained in the mortgage' and to hold the defendant harmless; and that the defendant, believing that this was in the agreement, signed the written agreement; and to show that he
The defendant was required to state whether, after the transaction fell through, he did not bring suit on the agreement; and a letter from his attorney, dated April 1, 1925, notifying the plaintiff’s counsel that the defendant could not assign because there were other encumbrances and offering the return of the $500 was admitted. It appeared that he brought action in January, 1926, alleging readiness on his part to perform the agreement; and that this was after his counsel had advised him that he had not obtained an agreement which would release him from liabilities under the mortgage. There was no error. The evidence was competent. Insistence upon the agreement as the basis of an action at law was inconsistent with his contention at the trial that it did not express the contract of the parties. His remedy if there had been mutual mistake was by a bill in equity. Misunderstanding on his part would not make out mutual mistake. Levin v. Bernstein, 269 Mass. 542, and cases there cited.
The first of the defendant’s eight requests for rulings was not proper subject of a request. Under Rule 45 of the Superior Court (1923), it was matter for a motion. The third, fourth and fifth were inapplicable where no fraud was found. The eighth was inapplicable in the absence of a finding of breach by the plaintiff. The seventh could not be given if the judge found, as he did, that the facts did not sustain it. The sixth likewise could not be given. The plaintiff’s purpose to acquire a method by which he could obtain money damages from the defendant rather than
Exceptions overruled.