Raymond v. Stone

Jenney, J. The plaintiff seeks specific performance of an agreement with the defendant Stone for the conveyance of real estate on Mill Street in Winchendon. That defendant in his answer admits that he purchased the property and at the time of the purchase orally agreed with the plaintiff to convey it to him and to his wife, Mary J. Raymond, since — 424 — deceased, upon payment therefor. The terms of the agreement apart from the person or persons to whom the property was to be transferred are not material. John B. Raymond, a son of the plaintiff, who has been made a party defendant, is executor of the will of his mother, Mary J, Raymond. In his answer he claims that under her will he is entitled to a two thirds interest in the premises and the plaintiff to that remaining. It is plain that this defendant cannot get affirmative relief without the aid of a cross bill. Mathews v. Colburn, 215 Mass. 571. Union Trust Co. v. Reed, 213 Mass. 199. Upon such a bill affirmative relief against a codefendant may be given as well as against the plaintiff. Forbes v. Thorpe, 209 Mass. 570. The case was referred to a master whose report has been confirmed and a decree for the plaintiff has been entered. The evidence is not before this court, and all the substantial facts have been determined in the plaintiff’s favor. The appeal of the defendant John B. Raymond raises only questions of evidence. The appellant offered in evidence a “ memorandum book which had been handed by Stone ” to either the plaintiff or his wife “ shortly after the property was purchased, in which book the various payments were supposed to be noted simultaneously with their entry in Stone’s own books. This book was offered not as a book of account but to show that the name Mary Jane Raymond, originally written thereon, had been erased and the name of the plaintiff inscribed thereon in its place.” The evidence was excluded on the ground that it “ had all been testified to without objection ” and because “ the book added nothing to the testimony.” The accuracy of these reasons is immaterial; it is sufficient if the exclusion was justified. Randall v. Peerless Motor Car Co. 212 Mass. 352, 384. Adams v. Boston Elevated Railway, 214 Mass. 1. Young v. Duncan, 218 Mass. 346, 351. Wheeler v. Tarullo, 237 Mass. 306. As the offer of proof does not include any statement when, by whom, or under what circumstances the change had been made, the relevancy of the evidence for the proffered purpose did not appear. The — 425 — omission is not supplied by the statement in the objection of John B. Raymond, filed with the master after the final draft of his report had been settled. Cunningham v. Worcester Five Cents Savings Bank, 223 Mass. 361. Smith v. Lloyd, 224 Mass. 173. The record shows no requests for findings until the hearing on the draft report. The exceptions to the refusal to admit this evidence must be overruled. The appellant urges that the master erred because of his refusal to admit an entry by Stone in a book of account reading as follows: “ Mary Jane Raymond, May 5, 1909. To Clark place Mill Street. When $200 is paid down and interest, she can have a deed and mortgage back.” As to this the master reports that the book was offered to prove a memorandum of sale of the property under the statute of frauds. It does not appear that this evidence was competent to contradict that given by the defendant Stone when upon the witness stand; indeed the existence and terms of the entry were admitted in his answer. Even if we assume that the name of the vendee, the description of the property, and the consideration are sufficiently contained in the memorandum, it was not signed by Stone. The entry was not binding on the plaintiff and nothing appears to indicate that as against him it was of any probative force. There is no question of the statute of frauds in the case and the appellant is not entitled to affirmative relief. The exception to the exclusion of this evidence is not tenable. That to the exclusion of the letter of the defendant Stone addressed to Mrs. Raymond, relating to an account with her which is assumed to concern the transaction here involved, must be overruled for like reasons. There is nothing to show that the letter was admissible against the plaintiff, or that it contradicted the evidence of the defendant Stone. Assuming that the entry in the book and the letter may be considered in connection with each other, they have no additional strength as against the plaintiff and cannot avail the appellant for the reasons already stated. The seventh, eighth and ninth exceptions relate to a note and mortgage upon household furniture given by Mrs. Raymond to the defendant Stone in connection with the — 426 — purchase of other real estate. The appellant contends that it was agreed they were to be collateral security for payment for that here concerned. However, the report discloses nothing of the kind and affords no basis for exceptions relating thereto. Warfield v. Adams, 215 Mass. 506, 519. Even if the facts were as stated, they did not require a finding of the master that the defendant Stone agreed to convey the Mill Street property to Mrs. Raymond. If the master’s report did not set forth sufficient facts to enable the court to pass fully upon questions of law properly raised and preserved before him, the appellant’s remedy was by motion to recommit for further report. Such motion should clearly set forth the grounds of recommittal, and the record should show the facts relied upon in support of the motion so that the court may pass upon their admissibility and materiality. Cook v. Scheffreen, 215 Mass. 444. Smith v. Lloyd, supra. The appeal from the interlocutory decree denying the motion has not been argued. -On the record the decree should not be reversed. No abuse of judicial discretion is disclosed. Magullion v. Magee, 241 Mass. 360. The interlocutory decrees appealed from must be affirmed, and the final decree modified by the insertion of a provision requiring the defendant Raymond to pay the costs of his appeal; when so modified it is to be affirmed. So ordered.