291 Mass. 234 | Mass. | 1935
This is an action of contract to recover the sum of $1,000, alleged to have been deposited in escrow with the defendant under a certain agreement between the plaintiff Alex Oppenheim and one Samuel M. Israel.
The declaration is in two counts, the first alleging, in substance, that on or about October 15 [5?], 1933, the plaintiff Alex Oppenheim entered into an agreement with one Samuel M. Israel whereby he was to become a partner with Israel in the hardware business then being conducted by Israel. Under the terms of this agreement the plaintiffs deposited with the defendant $1,000 to be held in escrow by him until December 1, 1933; upon that date, if certain conditions of the agreement had been complied with by Israel, the $1,000 was to be turned over to Israel, but if said conditions had not been complied with by Israel, then
The defendant's answer is (1) a general denial; (2) that after the agreement alleged in the plaintiffs’ declaration had been executed, the plaintiffs authorized the defendant to use and expend the sum of $542.65 of the said $1,000 for the purchase in the names of Pearl C. Israel and Charlotte Oppenheim of a certain stock of hardware belonging to Samuel M. Israel, trading under the name and style of Scituate Hardware Company, and that the defendant did use and expend said sum of $542.65 for said purpose; (3) that on or about October 5, 1933, the plaintiffs entered into an agreement with the defendant and one Samuel M. Israel, by the terms of which the plaintiff Alex Oppenheim and Israel agreed to become partners, under certain terms and conditions stipulated in said agreement to be performed on or before December 1, 1933, and that on November 7, 1933, the plaintiffs brought a bill in equity against this defendant and Israel, whereby the plaintiffs sought to rescind said agreement on the ground of false and fraudulent repre
It is obvious that the answers, other than the general denial, are answers in confession and avoidance. It is to be noted that they are a condensed restatement of the “Statement of Findings” in said equity case, which is set out in full and at great length in the record. It is to be further noted that the judge in said “Statement of Findings” found that “Under the agreement the sum of $1,000 deposited in escrow by Oppenheim with [the defendant] Colten was to be paid over to Israel if the . . . conditions [stated in the findings] were complied with”; that “The defendant Israel has never actually obtained a discharge of said chattel mortgage”; that “The defendant Colten in his letter of October 27 [1933] said he would discharge his mortgage lien if Israel’s creditors assented to the assignment”; that “At that time and at the time this case was heard (December 7 to December 13) out of a total of 51 creditors, 26 representing about $1,600 had assented, and 25 representing about $1,300 had not assented”; that “Assuming . . . that notwithstanding this fact, the assignee Quint would have been able to obtain a discharge of the mortgage by paying to Colten $500, the amount due on his mortgage out of the $542.65 which was the proceeds of the sale of Israel’s stock and fixtures, there still remained the obligation of Israel to obtain a release and discharge from all his merchandise creditors,” and he therefore found that Israel did not perform his agreement and was not ready and able to perform it.
At the conclusion of the trial in the pending action the judge made the following findings of fact: “subsequent to the written agreement between Samuel M. Israel and Alex Oppenheim and before December 1, 1933, the time for performance thereof, the plaintiffs authorized the defendant to use $542.65 out of the $1,000 he held in escrow under the terms of said agreement for the purchase from Milton Quint, Assignee, [of] the stock and fixtures of the Scituate Hardware Company and that the defendant did use $542.65 for said purpose.” The judge on October 25, 1934, found for the plaintiffs in the sum of $457.35. On November 2, 1934, he vacated that finding and found for the plaintiffs in the sum of $482.50, and the defendant received notice thereof by mail on November 3, 1934.
Before the final arguments the defendant requested rulings numbered 1-15 inclusive. Rulings numbered 1, 2, 3, 4, 7, 9 and 11 were denied and those numbered 5, 6, 8, 10, 12 and 13 were refused as “Immaterial.” Those num
The agreement, section 5, reads: “In the event that this agreement is not consummated by December 1, 1933, then in that event this agreement shall be null and void and the said Martin Colten agrees to turn back to Alex Oppenheim the said One Thousand ($1000) Dollars.” The agreement, under date of October 4, 1933, bears the following indorsement: “Rec’d of Alex Oppenheim and or Charlotte Brand (Oppenheim) $1000 to be held in escrow by me in accordance with the terms of the agreement bet. Samuel M. Israel and Alex Oppenheim, dated Oct. 4, 1933. Mastín Col-ten.” It is plain the filing of the bill of complaint on November 7,1933, was not a breach of the agreement of the plaintiffs to accept performance of the several acts which were required by the agreement to be performed by the defendant Israel by December 1, 1933. Daniels v. Newton, 114 Mass. 530. It is likewise true that the filing of the bill of complaint on November 7, 1933, and the pendency of the suit until after December 1, 1933, did not constitute such a repudiation of the contract as excused Israel from performance of the conditions of the agreement which were to be performed by him by December 1, 1933, or, in a broader aspect of the
Exceptions overruled.