Rix v. Dooley
77 N.E.2d 233
Mass.
1948
Check Treatment
Williams, J.

This is а suit in equity in which the plaintiffs, Ralph T. Rix and Mary C. Rix, husband and wife, seek specific performance of an alleged contract to purchase certain real estate, including a store and its contents, bought by the defendants Dooley, hereinafter called the defendants, at a public auction in Beverly on November 18, 1946. The defendants have appеaled from a final decree entered after findings of fact by the trial judge. The evidence is reported. ■

The realty involved, consisting of a building, the lower floor of which is used as a store, and a two-car garage, is located at thе corner of Dodge Street and Raymond Avenue in North Beverly. On November 18, 1946, it was sold for $10,500 to the defendants Charles F. Doolеy, Junior,' and his wife Catherine Dooley at a public auction conducted on the premises by William R. Mitchell, a licensed auctioneer. Previously, a newspaper advertisement had stated the terms to be “20% deposit at time of salе — balance in 30 days.” On opening the sale, the auctioneer read a copy of the advertisement and stated that the real estate would be sold subject to a mortgage of $3,500 held by the Beverly Trust Company. Immediately following *306the sale, the auctioneer made a written memorandum on the page of his ledger ‍‌​​‌​‌‌​‌​​‌‌​​​‌‌​​​​‌‌‌​​‌​‌​​‌‌​​‌‌‌‌​​​‌‌‌​‌‍on which were pasted coрies of his newspaper advertisement, as follows:

“Sold to Catherine Dooley and $10,500.
Charles F. Dooley,
Land and Buildings with Store and
Contents on Dodge St. North Beverly as advertised
Subject to 3500.00 mortgage
By
W. R. Mitchell Auctioneer.”

Dooley had with him at the sale a bank book of the defendant Sаlem Five Cents Savings Bank which showed a balance of $2,504.80. The bank being closed at the time, Rix accepted the book as security for the payment of $2,100 which Dooley agreed to procure from the bank on the following morning. Dooley requested and received a receipt which the auctioneer’s secretary wrote out on a blank form of real estate agreement produced by Dooley. In substance it read as follows: “Agreement made this Nov 18th day оf A. D. 19 between Ralph T. Rix and Mary C. Rix of Beverly Mass, of the first part, and Charles Dooley and Catherine Dooley, of Peabоdy Mass, of the second part. The party of the first part hereby agrees to sell and the party of the second part to purchase a certain estate situated 92 Dodge St. Beverly Mass, and bounded and described as follows: Corner of Raymond Ave. Beverly. The said property located at said address with all stock and fixtures and good will known as Ralph’s Market for the sum of $10,500.00 of which said Ralph Rix has received deposit of 20% or $2100.00 and balance to be paid within 60 do. of date. . . . Said Ralph & Mary Rix are selling business & real estate free from ,all incumbrance except mortgage held by Beverly Trust of $3500.00 mortgage оn Real Estate. Ralph T. Rix. Mary C.. Rix.” On the following day, the 19th, the Dooleys refused to withdraw the twenty per cent of the purchasе price from the bank and to consummate the purchase.

*307The defendants contend that their purchase was аt a private sale made after the auction had been "called ‍‌​​‌​‌‌​‌​​‌‌​​​‌‌​​​​‌‌‌​​‌​‌​​‌‌​​‌‌‌‌​​​‌‌‌​‌‍off” and that therefore the memorandum of the auctioneer was insufficient under the statute of frauds.

The findings of the judge are substantially as above stated and negative the defendants’ contention. They are not plainly wrong. Berman v. Coakley, 257 Mass. 159, 162.

Both parties are bound under the statute of frauds, G. L. (Ter. Ed.) c. 259, § 1, by thе memorandum made at the time and place of sale by the auctioneer, who at that time was acting as the agent for both sellers and purchasers. The memorandum is sufficient as to contents. Giolitto v. Dingolo, 251 Mass. 38. Gill v. Bicknell, 2 Cush. 355. White v. Dahlquist Manuf. Co. 179 Mass. 427. Williams v. Bacon, 2 Gray, 387, 393. It describes the property so аs to identify it and impliedly refers to the advertisements pasted ‍‌​​‌​‌‌​‌​​‌‌​​​‌‌​​​​‌‌‌​​‌​‌​​‌‌​​‌‌‌‌​​​‌‌‌​‌‍on the same page. The price is stated, the terms are given, and the mortgage encumbrance is mentioned. Cousbelis v. Alexander, 315 Mass. 729. Irving v. Goodimate Co. 320 Mass. 454, 458. Shayeb v. Holland, 321 Mass. 429. It is apparent that it correctly states the oral undertaking of the parties. Epdee Corp. v. Richmond, 321 Mass. 673. It may be noted that the above described receipt states that the balance of the рurchase price is payable in sixty days. If that statement is not a mistake on the part of the auctioneer’s seсretary, it amounts to no more than a permission to the defendants, already bound by their contract of purchase, to make payment on slightly more favorable terms.

The bill prays for specific performance. ‍‌​​‌​‌‌​‌​​‌‌​​​‌‌​​​​‌‌‌​​‌​‌​​‌‌​​‌‌‌‌​​​‌‌‌​‌‍To that the plaintiffs are entitled. Old Colony Railroad v. Evans, 6 Gray, 25, 30.

The plaintiffs are not entitled in the alternative to damages and, therefore, it is unnecessary fоr us to consider the accuracy of the rule of damages which the judge has employed. The plaintiffs electеd to come into equity and have made out a case for equitable relief. No disability on the part of the defеndants to perform their contract appears. Eastman v. Simpson, 139 Mass. 348. Canning v. Shippee, 246 Mass. 338.

*308The disposal of the bank book remains to be considerеd. It was originally delivered to the plaintiffs as security for the payment of $2,100, the amount of the required deposit, which deposit was intended as a payment on account, not to be refunded except, for defect in title. Thompson v. Kelly, 101 Mass. 291. The plaintiffs have the rights of pledgees. The delivery of the bank book, although without a written assignment, vested in the plaintiffs ‍‌​​‌​‌‌​‌​​‌‌​​​‌‌​​​​‌‌‌​​‌​‌​​‌‌​​‌‌‌‌​​​‌‌‌​‌‍as collateral security an equitable title not only in the book but also in the sum deposited in the bank, to the amount of $2,100. Taft v. Bowker, 132 Mass. 277. J. S. Lang Engineering Co. v. Commonwealth, 231 Mass. 367. Stebbins v. North Adams Trust Co. 243 Mass. 69, 75. The decreе should provide that the defendants be ordered to execute an order on the savings bank to pay to the plаintiffs $2,100 and that the defendant savings bank be ordered to make such payment on presentation of the bank book with the dеfendants’ order.

The parties have not contended that the final decree is wrong in providing that the obligation of the defendants to pay $10,500 is to be discharged by the payment by them in cash of $7,000 and the assumption by them of the payment of thе $3,500 mortgage. The defendants have not argued the point, Carangias v. Market Men’s Relief Association, Inc. 293 Mass. 284, and the plaintiffs have not appealed from the decree. Kilkus v. Shakman, 254 Mass. 274, 280.

The final decree, modified as above indicated, is affirmed with costs of the appeal.

So ordered.