Weiner v. Simons

Carroll, J. The plaintiff appealed from a final decree dismissing a bill in equity for the specific performance of a contract for the exchange of real estate, and directing the return to the defendants of the money deposited by them under the contract. The defendants agreed to pay, for the property the plaintiff was to convey, $47,000 “less the amount of the mortgages outstanding, of which five hundred dollars ($500) have been received as a deposit by the party of the first part, and eighteen thousand dollars ($18,000) or the sum which is due to the party of the first part after deducting the mortgages and other encumbrances from the purchase price, are to be paid in cash at the time of delivery of the deed.” The written [329] agreement sets out that the property was subject to a mortgage of $17,500, subject to a second mortgage of $8,000 held by Segal Brothers, “which becomes due September, 1928, bearing interest at the rate of eight per cent per annum, and subject to a third mortgage of thirty-five hundred dollars ($3500) held by Abraham Berman which mortgage is due in September, 1928, bearing interest at the rate of seven per cent per annum. Interest above 6% on the second and third mortgages are to be paid by the party of the first part.” On June 15,1928, when the papers were to be passed, there was due on the principal of the second mortgage the sum of $7,300, and not $8,000 as stated in the agreement; the rate of interest was ten per cent and not eight per cent, and the second mortgage was in fact due August 1, 1928, and not September, 1928, as stated in the agreement. The principal due on the third mortgage was $3,450 and not $3,500. The judge found that the differences in the principal amounts were in part due to payments upon the principal required by the terms of the mortgages subsequent to the execution of the agreement and before June 15,1928. The defendants were entitled to have what they contracted for. They cannot be required to accept something different. They could stand on the contract as made. The second mortgage was due on August 1,1928. The defendants would be obliged to pay the entire principal and interest of this mortgage at least one month earlier than the contract called for. In a transaction of this kind the difference in the date when this mortgage was due and the date stated in the agreement may have been a matter of importance, and as the defendants could rely on the recitals in the contract they were not obliged to carry out a transaction differing from the one agreed to. The plaintiff could not fulfil the contract he made. Park v. Johnson, 7 Allen, 378, 383. Dresel v. Jordan, 104 Mass. 407, 417. Brigham v. Townsend, 119 Mass. 287, 289. Downey v. Levenson, 247 Mass. 358. Without considering the reductions made in the amount due on the mortgages by reason of the payments made by the plaintiff, or the difference in the rate of interest, in view of the provision in the contract that all interest above six per cent was [330] to be paid by the plaintiff, in our opinion the statement in the contract that the second mortgage was due in September, 1928, when in fact it was due August 1, of that year, prevented the plaintiff from obtaining specific performance of the contract. The plaintiff contends there was a waiver by the defendants. We cannot agree with this contention. It was a question of fact whether the defendants waived the difference between the terms of the mortgage as described in the contract and as they existed. There was some evidence to support this contention; but the question of waiver was one of fact, and the finding of the judge on oral evidence, that the defendants, by conduct of themselves or of their attorney, have not waived nor are they estopped “to assert the objections upon which they now rely,” is not to be set aside. In the decree the plaintiff was ordered to pay the defendants $1,000, the amount paid by them under the contract. The plaintiff was unable to perform. He held the defendants’ money without consideration. Burk v. Schreiber, 183 Mass. 35. Leonard v. Wheeler, 261 Mass. 130. Greenberg v. Lannigan, 263 Mass. 594. If we assume that the defendants did not appear at the appointed place where the deeds were to be passed and that they conveyed their property to their daughter without consideration, these facts did not, in our opinion, deprive them of the right to the return of their money. The plaintiff could not carry out the contract and the defendants could rescind the contract. Decree affirmed with costs.