Ryder v. Ellis

Jenney, J. The defendant, Merton F. Ellis, on January 18, 1918, foreclosed under the power of sale contained therein a fourth mortgage for $5,000 upon real estate of the plaintiff, Henry H. Ryder. The plaintiff sues for the surplus remaining after satisfaction of the amount due the defendant under the mortgage, and for other moneys received by the defendant for his use. The answer, so far as now material, was a general denial and payment, the latter defence being set up generally and in detail. The defendant, in a declaration in set-off, also sought judgment for many of the amounts as to which he had specifically pleaded payment. The defendant had purchased the property at the foreclosure sale for $8,100. Admittedly there was then due him substantially the entire principal of the mortgage, unpaid interest, and foreclosure expenses. He concedes that in addition to whatever surplus remained, the plaintiff was entitled to certain rentals and to money advanced for the payment of taxes which had not been used for that purpose. On March 22, 1918, the defendant agreed with the plaintiff to re-convey to him the real estate described in the foreclosure deed for $1,000 “in excess of all expenditures incurred” by Ellis “on or in connection with, said property . . . after deducting from said expenditures any sums that said Ellis has received on said property.” -The agreement further acknowledged the receipt of $1,000 of the amount payable under its terms, and provided that the balance should be paid within thirty days; it also stipulated: "It is to be understood and agreed that an accounting is to be had to show the exact amount which said Henry H. Ryder is to pay said Merton F. Ellis for said conveyance.” At the time of the execution of this contract, Ellis gave Ryder the check of M. F. Ellis and Company for $1,000 in part payment of the balance due Ryder from the surplus upon the foreclosure sale; and Ryder immediately indorsed the check to Ellis who collected it and received the proceeds as the deposit required by and acknowledged in the contract. — 56 — At the trial the plaintiff contended that the defendant did not comply with the contract of sale and, for that reason, that he was entitled to recover the $1,000 so paid. He based this claim wholly upon the contention that the defendant had broken the agreement, and the case was tried without objection and without regard to the pleadings upon the basis that his right to recover the amount paid was properly in issue, although the declaration made no such claim. In these circumstances the defendant cannot now for the first time successfully claim that the plaintiff’s pleadings were insufficient. Ridenour v. H. C. Dexter Chair Co. 209 Mass. 70. Walker v. Russell, 240 Mass. 386. The plaintiff had a verdict and the case is here upon the defendant’s exceptions. The exception first considered is to the refusal of the judge to rule that on all the material evidence the plaintiff had defaulted upon the contract of sale and for that reason the defendant must either be allowed a credit of $1,000 to be deducted from the surplus arising from the mortgage sale or be allowed a credit of $1,000 upon his declaration in set-off. This request was based upon a ruling as to the effect of all the evidence; it raised no question of pleading. Disregarding any other objection thereto, the ruling was properly refused because the assumption contained therein was erroneous. The evidence admitted without objection justified a finding that there had been no accounting to determine the exact amount payable under the agreement of sale, and that this failure had been caused by the defendant. In his amended declaration in set-off, the defendant averred that he was entitled to recover $510.53 because he was the owner by assignments of the claims of five creditors of the plaintiff. The judge instructed the jury that the plaintiff could be allowed only such amounts as he had actually paid the plaintiff’s creditors for their claims. If this contention of the defendant is considered wholly with reference to the agreement for the re-purchase of the real estate, the ruling was sufficiently favorable to the defendant. The agreement provided that Ryder in order to be entitled to a re-conveyance of the real estate should repay Ellis for certain accounts due from Ryder "to certain creditors which have been paid by said Ellis for Ryder and which were duly assigned to said Ellis,” and it specified the creditors and the amounts due each. — 57 — "Very likely the question of the defendant’s right to recover under the contract the amounts of these claims is settled by his failure to perform his contract as found by the jury. In any event, the express agreement to pay is founded on the payment of the claims in behalf of the plaintiff and not upon the admitted fact of their assignment to him and the conceded validity of the claims. Properly construed, the defendant at the most under its terms could set off no more than that which he had in fact paid upon the claims, there being no agreement by the defendant to pay to said creditors anything unless he received something from the plaintiff. As to three of the claims the jury specifically found that the defendant had neither paid nor agreed to pay anything. It appears from the judge’s charge that the right to set off these three claims was in dispute, the other claims apparently not being in controversy. If the question is examined more broadly under the statute relating to set-off, there was no harmful error. The right of set-off is wholly a creation of statute. Perry v. Pye, 215 Mass. 403, and cases collected at page 413. Set-off is permitted only in favor of claims the defendant holds “in his own right” or claims of the kind embraced in the statute which have been assigned to him. R. L. c. 174, § 1. G. L. c. 232, § 1. In order to avail himself of the statute, the defendant must be the sole beneficial owner of the claim assigned. He must not hold it for the benefit of another. Gilman v. Van Slyck, 7 Cowen, 469. Satterlee v. Ten Eyck, 7 Cowen, 480. Olmstead v. Scutt, 55 Conn. 125. Proctor v. Cole, 104 Ind. 373. Sunter v. Warner, 16 Mich. 390. Straus & Brother v. Eagle Ins. Co. 5 Ohio St. 59. McDade v. Mead, 18 Ala. 214. See Sargent v. Southgate, 5 Pick. 312; Cook v. Mills, 5 Allen, 36. The statutory provisions respectively permitting an assignee by written instrument of a non-negotiable chose in action to sue thereon in his own name, providing for the setting up of equitable defences in actions at law, and governing the set-off of judgments and executions, do not affect this principle. The evidence justified the finding of the jury, and warranted the conclusion that the claims were simply assigned for collection; the instructions given were sufficiently favorable to the defendant. However, as the judge instructed the jury that the assignments were valid in form and that the amounts stated therein were owed by the plaintiff to the persons named therein, the defendant — 58 — suffered no harm in the refusal to give his third request. The exceptions relating to the admission of evidence as to how much the defendant paid for the assignments of these claims and as to the circumstances under which the assignments were made must be overruled, for the reasons already given when considering the effect of these assignments and the amounts for which they were enforceable under both the contract of resale and the general law of set-off. Cases like Phipps v. Bacon, 183 Mass. 5, and MacKeown v. Lacey, 200 Mass. 437, are not in point in the conditions here existing. The defendant’s request that upon all the evidence J. Howard O’Keefe was acting as the plaintiff’s agent in an accounting at the office of the defendant’s attorney was properly refused. It is construed as requesting a ruling of law that he was so acting with authority properly conferred upon him or that his employment afterwards had been ratified. There was evidence that Mr. Ryder’s attorney said to the defendant’s attorney that if O’Keefe was satisfied with an account that had been rendered by the defendant, it would be satisfactory to him. O’Keefe who was an attorney-at-law then represented only Mrs. Ryder. In the aspect most favorable to the defendant, it could not have been ruled as matter of law that O’Keefe was authorized to act in behalf of Mr. Ryder either by prior authority or subsequent ratification. Smith v. Abbott, 221 Mass. 326. A statement of account dated April 2, 1918, was admitted in evidence. A witness was asked: “Now, when Mr. O’Keefe [evidently referring to J. Howard O’Keefe who had represented Mrs. Ryder, and whose authority to act in behalf of the plaintiff was in question] left or was on the point of leaving do you remember his saying anything about that account?” The question having been answered in the affirmative, the witness was asked as to what O’Keefe then said. The defendant’s exception to the exclusion of this question cannot be sustained. The question was accompanied with no offer of proof. Other objections to it need not be considered. Warren v. Spencer Water Co. 143 Mass. 155. Kennon v. Shepard, 236 Mass. 57. The defendant also excepted to that “portion of the judge’s charge which said [sic] that if the claims assigned tended to swell the account.” This restricted exception can relate only to two — 59 — isolated parts of the charge. The judge said in substance that if Mr. Ryder did all that he was called upon to do under the circumstances and kept the terms of the contract himself, but was prevented from its performance either because the defendant procured creditors to increase the amount that he was to pay or because he was prevented by the defendant from the performance of the contract in some other way, the plaintiff could recover the $1,000 paid on account of the contract. He further instructed the jury in substance, with reference to the assigned claims, that if Hllia endeavored to secure the payment of the entire amount of these claims in order to prevent the plaintiff from raising sufficient money to redeem his property, and if that conduct contributed to prevent the plaintiff from carrying out his agreement to redeem, and if the plaintiff for that reason could not raise the money necessary in order to redeem, then the plaintiff was entitled to recover the $1,000 paid under the contract. Wrenched from their context, these statements may seem to be the subject of criticism, but when considered in the light of the remainder of the instructions given, their true meaning and application are obvious. The judge was then considering the effect of the contract of resale upon the rights of the parties, not under the pleadings, but upon the case as tried. Under the agreement the defendant was entitled to be “repaid” for specified accounts due from the plaintiff to third persons if they had been paid by him for the plaintiff. It was in this connection that the judge called the attention of the jury to the claim of the plaintiff that the defendant had in part contributed to the plaintiff’s inability to obtain a reconveyance of the real estate by his contention that he was entitled to receive amounts not in fact paid by him and to which he was not entitled under the agreement as a condition of his compliance therewith. The instructions given as to the effect of the contract in the setting in which they were placed were substantially correct. This exception must be overruled. The denial of the motion for a new trial raised no question of law. The only reason given in the motion was because of newly discovered evidence which wholly related to an allegation contained in a bill in equity brought by the plaintiff against the defendant prior to the institution of this action. The matters set forth in the motion either were within the knowledge of the de — 60 — fendant at the time of the trial or by the exercise of reasonable diligence might have been known to him. No ruling of law was requested or made. The motion plainly was addressed to the discretion of the judge which, so far as the record shows, was properly exercised. Davis v. Boston Elevated Railway, 235 Mass. 482. The foregoing are the only exceptions argued orally or upon the defendant’s brief, but the brief concludes: “Defendant Ellis relies on all his exceptions.” The record comprises fifty-one printed pages. It is somewhat confused and the case was not tried strictly upon the issues raised by the pleadings. It is not the duty of this court to search through the record for exceptions which the defendant does not consider of enough moment to warrant argument. They are treated as waived. Exceptions overruled.