Marciniak v. Walz

De Courcy, J. The jury, who returned a verdict for the plaintiff, by considering the evidence in its aspect most favorable to him would have been warranted in finding the following facts. The defendant formerly owned the Majestic Theatre building in Easthampton. The bowling alleys in the basement were owned by William E. Mengel and Julius J. Mutter in 1913. On August 4 of that year they gave to oné Lyman a note for $1,000, and, as security therefor, a mortgage of the bowling alleys, pool tables and — 263 — equipment. On January 2, 1914, they executed a second mortgage for $1,200, in favor of Anna Mengel and Rudolph Mutter, Jr. The defendant was indorser of the first mortgage note. He bought and received a bill of sale of the alleys in February or March, 1914; subsequently paid the first mortgage note; and in October, 1918, took from Lyman an assignment of the mortgage. On January 8, 1920, he obtained from the owner of the building, Samuel and Nathan E. Goldstein, Inc., a lease of the basement premises for a term of eight years. On January 14 he received from the plaintiff ■$3,000 as the sale price for the “Majestic Bowling Alley,” and gave him a receipt therefor, and an agreement to assign the lease. This agreement also provided that “Possession of said property is to be transferred to the said Marciniak by the'said Walz by a Bill of Sale, which shall be executed immediately upon the assent of the said Samuel & Nathan Goldstein, Inc., to the assignment of the lease.” It further stipulated that until the bill of sale was executed, and the assent secured, Marciniak should work for Walz, and receive as compensation the net receipts of the business; and that “When the said Bill of Sale transferring the ownership of said property to the said Marciniak is executed,” and said assent secured, the plaintiff should give a note for the value of the insurance policies and coal. The assignment of the lease was duly assented to, with a modification requiring the lessee to pay the water rates in excess of $6 per annum. The lease itself never was delivered to the plaintiff. He was unable to obtain a bill of sale from the defendant, although he many times asked for one. Meanwhile he carried on the business of running the bowling alleys. On April 5 written demand was made on him for the payment of what was due on said $1,200 note; and the letter notified him that if it was not paid, the mortgage on the alleys would be foreclosed. He showed the letter to the defendant, and said he would consult a lawyer; but Walz told the plaintiff he could not sell the alleys as long as he (Walz) had the lease. Something was said also by Walz about foreclosing the first mortgage, which had been assigned to him. Finally the plaintiff asked for the return of his money, offered Walz the key of the premises, and brought this action. The case was submitted to the jury on the first, second and fifth counts; the fifth (as above set forth) being based on the alleged refusal of the defendant to — 264 — transfer the property and give a bill of sale thereof, in accordance with his agreement. The defendant excepted to the judge’s refusal to give certain-rulings requested, and to portions of his charge to the jury. Requests numbered 1, 2, 3, 4 and 13 relate to the plaintiff’s right of rescission. These were rendered immaterial by the ruling of the court that “the case could not be submitted to the jury on the ground of rescission of contract because there was nothing to show that Samuel and Nathan E. Goldstein, Inc., would assent to the waiver of the additional terms contained in the assignment of the-lease to the plaintiff.” The same is true of number 12, so far as it refers to the plaintiff’s right to rescind; and on any other ground it was rightly refused. We have no occasion to consider whether said ruling was too favorable to the defendant. See O’Shea v. Vaughn, 201 Mass. 412, 423, et seq. The remaining requests relate to alleged breaches of warranty of title, and freedom of the property from incumbrances. They were rightly refu'sed as irrelevant because the fourth count, on which they were based, was not sent to the jury. The exceptions to the judge’s charge all deal with alleged breaches of express or implied warranties. The verdict was for $3,000, and manifestly was assessed on the theory that no title to the personal property ever passed to the plaintiff, and that he was entitled to recover damages for breach of the contract, as alleged in the fifth count. Accordingly any error in ' the portion of the charge dealing with damages for breach of warranty was rendered immaterial by the verdict. Stratton v. Mount Hermon Boys’ School, 216 Mass. 83, 89. Sylvester v. New York, New Haven & Hartford Railroad, 217 Mass. 148, 153. The defendant’s main argument seems to be that no recovery could be had under the fifth count, on the ground that this count was based upon the rescission of a completed contract. The short answer to this is, that no such question is open on the exceptions. But it may be said in addition that no question of pleading was raised at the trial. The judge fully charged the jury as to the plaintiff’s right to get back his money if it was the agreement of the parties that a written bill of sale was to be “ an essential document in the passing of a title” and if the title never was in Marciniak because a bill of sale was not delivered nor its delivery-waived. No exception was taken to what was said on this issue. — 265 — It is true that after thé defendant’s motion for a new trial had been overruled, the words “ and the plaintiff seeks to recover said purchase price ” were added to the fifth count at the request of his attorney, and with the acquiescence of the defendant’s attorney. But this language was not in the count when the jury passed upon it. The meaning and the legal effect of this addition are not brought before us for consideration by any of the defendant’s exceptions. ■Exceptions overruled.