Tripp v. Babcock

195 Mass. 1 | Mass. | 1907

Sheldon, J.

1. On the facts found by the master, the fourth item in the defendant’s account for $247 was rightly allowed. This amount was really paid by Babcock to Garland in the manner agreed upon between them when the mortgage was given. The fallacy of the plaintiff’s argument is in its assumption that it was the duty of Babcock to see to _it that what he advanced under the mortgage went, after the dischai’ge of the previous mortgages, to pay for the expenses of improving the property by erecting a building thereon. But this is not so, nor did Babcock owe any duty to the plaintiff to see that this should be so. Even independently of his oral agreement with Garland, he was to make advances to Garland when the building to be erected by the latter should have reached certain stages of completion; Garland might make such application of the advances as he should choose. If Babcock had so advanced $247 more than he did, and then Garland had paid Babcock that sum for the other indebtedness, either out of the money so advanced or from other resources, the result would have been the same; but the plaintiff could have made no complaint. The plaintiff has lost nothing by having that done directly which might have been done indirectly. But besides this the master has found that Babcock’s mortgage was taken with the express agreement that this item should be secured by it, and that only subject to this agreement was it what is popularly called a “ construction loan mortgage.” The plaintiff’s claim could not be supported without affirming that a first mortgagee who learns that part of the purchase money is secured by a second mortgage must at his peril see that all his future advances are applied to increasing the value of the property. None of the authorities cited by the plaintiff go to this length; and we are not willing to take such a positon. Johnson, v. Thompson, 129 Mass. 398.

2. The Superior Court was right in its ruling as to interest. Garland had agreed to pay interest on the full amount of $5,000. This appears by the terms of both the note and the contemporaneous agreement between them. As Babcock was required to keep the full amount in readiness, this was necessary to his full compensation. But when Garland went into bankruptcy Babcock’s duty to make further advances ceased; and, as against the plaintiff at any rate, he no longer should be allowed interest on anything more than the amount actually advanced. Bangs v. Fallon, 179 Mass. 77. Lewin v. Folsom, 171 Mass. 188.

No other questions were argued before us.

Decree affirmed.