298 Mass. 30 | Mass. | 1937
The plaintiff ¿ as assignee of a certain contract in writing, brings this action in which it is alleged that on March 24, 1934, the defendant and one Samuel Rosenbaum entered into an agreement whereby the defendant was to sell certain premises in the city of Chelsea to Rosenbaum, “and also agreed to make repairs to the extent of” $650. The declaration further alleges that the repairs had been made, but that the defendant refused to pay the full amount' of $650 for them, and that $200 is still due. The answer denied that the defendant agreed to make the repairs, and alleged that under the agreement Rosenbaum “was to make the said repairs to an amount not exceeding $650 and the defendant was to reimburse” him. The answer also denied that all the repairs agreed upon had been made, and stated that for such repairs as were made Rosenbaum has been paid by the defendant.
There was evidence in the report of the following facts: By an agreement between the defendant and Rosenbaum, the defendant was to convey certain premises to Rosenbaum, who was to make certain repairs. Such repairs included “Paint outside of building before September 1, 1934.” The agreement also provided: “The bank agrees to make repairs to the extent of Six Hundred Fifty ($650.) before conveyance is made.” The agreement was dated
At the close of the evidence the defendant made certain requests for rulings, including the following: “6. If the outside of the building was not painted, the plaintiff cannot recover.” This request was denied. The trial judge found for the plaintiff in the sum of $200. It is recited in the report that it contains all the evidence material to the questions reported. The defendant claiming to be aggrieved by the rulings and refusals to rule as requested, the trial judge reported the case to the Appellate Division, which reversed the finding for the plaintiff and ordered judgment for the defendant. From this order the plaintiff appealed.
If on the record it was impossible to determine whether the sixth request was denied as matter of law or because immaterial to the facts found, there would be manifest error which would require a reversal and the ordering of a new trial. Bresnick v. Heath, 292 Mass. 293, 298. But on this report there is nothing to show that the request was denied as immaterial to facts found, for there are no findings of fact to support such a conclusion. Rule 28 of the Municipal Court of the City of Boston (1932), as amended, re
The delivery of the deed by the defendant did not constitute as matter of law a waiver of any obligation of Rosenbaum. Sessa v. Arthur, 183 Mass. 230. The agreement expressly stated that the painting was to be done “before September 1, 1934,” and the conveyance was to be made on May 15, 1934. It is manifest that the agreement contemplated a possible delivery of the deed before the house might be painted. The provision in the agreement that the “acceptance of a deed and possession by the party of the second part [Rosenbaum] shall be deemed to be a full performance and discharge hereof” is not contrary to this conclusion. That provision, in order to render all provisions of the agreement in harmony, may be read to refer only to performance by the vendor, or to those obligations which
As the record is fairly susceptible of the conclusion that the sixth request of the defendant was erroneously denied as matter of law, and as a correct disposition of this request would have disposed of the case in favor of the defendant, it is unnecessary to consider whether there was any error in the denial of other requests for rulings. The Appellate Division rightly ordered the entry of judgment for the defendant. Andrade v. Hanley, 289 Mass. 335, 337. G. L. (Ter. Ed.) c. 231, §§ 110, 124.
The entry must be
Order of Appellate Division affirmed.