Rosenberg v. Heffernan

Morton, J. This is a bill in equity to enforce the specific performance of a written agreement entered into between the plaintiffs and the defendants, Mary A., and her husband William G. Heffernan, for the sale and purchase of certain real estate belonging to the said Mary situated in Cambridge. The premises were subject to a mortgage in favor of one Celia Green and, subsequent to the written agreement aforesaid, were conveyed by said William and Mary to one Louis Levy. The said Green and Levy were made parties to this suit, and the bill contained allegations of fraud and conspiracy against all of the defendants. There was a hearing, and a decree was entered dismissing the bill as to said Green and Levy and denying specific performance, but finding that the Heffernans had refused to perform their agreement and that the plaintiffs had been damaged thereby, and retaining the bill for the assessment of damages. The Heffernans appealed. There is no report of the evidence on which this decree was based. The case was sent to a master to assess the damages. He made a report assessing damages in favor of the plaintiffs in the sum of $950. Exceptions to the report were filed by the said William and Mary, which were overruled, and the master’s report was confirmed and a final decree was entered in favor of the plaintiffs against the defendants, William and Mary, for the sum of $950 damages, with interest. The defendants Heffernan appealed from this decree and from the order confirming the master’s report. There is no report of the evidence on this branch of the case. The presiding justice at the request of the defendants, Heffernan, whom we shall speak of hereafter as the defendants, made certain findings of fact in addition to those recited in the first decree. The findings thus made, and the master’s report in regard to the assessment of damages and the exceptions thereto, and the pleadings are all that is before us. The defendants do not contend that the bill was not properly retained for the assessment of damages if it appeared that they [154] had committed a breach of the agreement and were unable to specifically perform it. The agreement contained amongst other provisions the following : “ Three hundred and fifty dollars is to be held by the purchasers to secure right of way and other privileges from Michael Heffernan of said Cambridge but if said rights are secured for less than said sum, the balance is to be paid to said Mary A. Heffernan, if said rights cannot be secured for said sum the party of the first part shall return said $100,” meaning the $100 which the agreement recites was paid by the plaintiffs as a part of the purchase price on the day on which the agreement was entered into. The master found that “the right of way and other privileges” referred to could not be purchased for $350 but could be purchased for $500. And one contention of the defendants is that, according to the true construction of the provision quoted above, the effect of the master’s finding was to relieve them from any further obligation to convey, their contention being that, according to the true construction of the written agreement, if the right of way and other privileges could not be secured for the sum named, then the $100 was to be returned and the agreement was to be at an end and there was no liability for damages on their part. But the master also found that the parties “agreed and it was understood between the plaintiffs and the defendants Heffernan that whatever plaintiffs should be called upon to pay for this right of way and other privileges should not be charged against the Heffernans at more than the three hundred and fifty dollars ($350) reserved by the terms of the agreement.” That is, as we construe the master’s finding, he found, not as a matter relating to the construction of the written agreement, but independently of the written agreement, that, after the written agreement was entered into, it was agreed and understood between the plaintiffs and the defendants, in substance, that the defendants would pay $350 to secure the right of way and other privileges, but that, if more had to be paid, it was to be and would be paid by the plaintiffs. The reference to “ the three hundred and fifty dollars reserved by the terms of the agreement ” shows, we think, that the understanding and agreement found by the master was a later one. In view of the finding thus made by the master, it is enough, we think, to [155] say of the defendants’ contention that the question as to the true construction of the written agreement, if open to the defendants, as it may be on appeal, is immaterial; — the written agreement being superseded in this particular by the later agreement. In addition to this, the question is not raised by the exceptions to the master’s report as is later more particularly pointed out. The agreement also provided that, “ If the party of the first part (the defendants) shall be unable to give title or to make conveyance as above stipulated, any payments made under this agreement shall be refunded, and all other obligations of either party hereto shall cease, but the acceptance of a deed and possession by the party of the second part shall he deemed a full performance and discharge hereof.” The defendants contend in substance that there were incumbrances upon the property at the time when the bill was brought, consisting of certain attachments placed upon it and a bill in equity brought by one Michael J. Heffernan which rendered them unable to give a title such as was contemplated by the agreement, and that therefore, by the very terms of the agreement, they had committed no breach of it and were not liable in damages. There are several difficulties with this contention. In the first place, assuming that the defendant’s construction of the agreement is right, and that they were not bound 'to convey unless they could give a clear title subject to the mortgage, the evidence is not before us, and we cannot say, therefore, whether the title was or was not clear, or whether, for instance, the attachments and the bill in equity may not have been fraudulent and collusive. In the next place, it is apparent from his findings of fact and the decree which he entered that the presiding justice did not regard the attachments and the bill in equity as constituting incumbrances on the property, and, as already observed, we have not the evidence before us so that we can review his conclusions. Lastly, none of the exceptions raise the questions which the defendants now seek to raise as to the construction of the agreement and the effect of the incumbrances, if any there were, although, as already observed, they may be open to them on their appeal. The first exception is “ to the master’s finding that it was not within his province to report any finding of fact or ruling of law as to whether or not there was any breach of the [156] agreement.” The master’s finding was clearly right, as the case was sent to him only for the assessment of damages, the court having previously found that there was a breach of the agreement by the defendants. The second exception is to the amount of damages found, the third to his finding as to the market value of the property and the fourth to his finding that the right of way could be purchased for $500. None of these raise in an intelligible form any question as to the construction of the written agreement, and they were all rightly overruled. The result is that the decree must be affirmed. Decree affirmed.