Mechaber v. Pittle

Wait, J. The defendant owned a mortgage made by one Charette upon premises subject to prior mortgages to a bank for $9,000, to one Driscoll for $28,000, and to one Desautels for $5,000. As to one parcel it was a second, and as to another it was a third mortgage. It contained an agreement by which Pittle guaranteed the performance [196] of the conditions of a lease made by Pittle to Messier and assigned to the Made Rite Ice Cream Company. It secured a note for $28,000, and bore date February 2, 1925. The plaintiff negotiated for its purchase; and on March 24, 1925, a written agreement under seal was signed by Pittle and Mechaber. This recited the receipt of $500* from Mechaber by Pittle on an agreement to assign the mortgage in consideration of $20,750, of which, in addition to the $500, $13,250 was to be paid in cash upon the execution of the assignment and the balance by a note for $7,000 with interest at five per cent for a term of three years or to be paid when the Desautels mortgage was discharged. It agreed that “the only prior incumbrances on these premises” were the three mortgages above described; and provided further, “In the event that there are other incumbrances on these premises it is agreed that this agreement shall be null and void and the said sum of five hundred (500) dollars returned. The said Mechaber accepts the mortgage as is, providing all other conditions herein specified are complied with.” The plaintiff on April 2, 1925, brought action for breach of the agreement alleging a tender. After a finding for the plaintiff, the defendant brings before us exceptions to rulings in admitting and rejecting evidence and in denying certain requests. There was evidence that the defendant to the plaintiff’s knowledge desired to get rid of the agreement of guaranty in the mortgage; that he sought advice whether an assignment would release him, and was told by his counsel that a simple assignment of the mortgage probably would not; that the last sentence of the written agreement was in long hand, while the rest was typewritten; and that the plaintiff had represented that the words “ as is” in that sentence would take care of the guaranty, and the plaintiff took subject to the lease. The defendant offered to show that orally the plaintiff agreed to take over the guaranty of the lease contained in the mortgage' and to hold the defendant harmless; and that the defendant, believing that this was in the agreement, signed the written agreement; and to show that he [197] made statements to the plaintiff’s attorney, after he had read over the written agreement to a lawyer and asked an opinion on its meaning. This evidence was excluded properly. No evidence of fraud appears. The defendant was seeking to show his understanding of the meaning of the writing. Evidence of conversations and negotiations culminating in the writing is not competent in such circumstances. Goldenberg v. Taglino, 218 Mass. 357. Western Newspaper Union v. Dittemore, 264 Mass. 74. We see nothing ambiguous in the language. Cases like Reinherz v. American Piano Co. 254 Mass. 411, are not in point. The defendant was required to state whether, after the transaction fell through, he did not bring suit on the agreement; and a letter from his attorney, dated April 1, 1925, notifying the plaintiff’s counsel that the defendant could not assign because there were other encumbrances and offering the return of the $500 was admitted. It appeared that he brought action in January, 1926, alleging readiness on his part to perform the agreement; and that this was after his counsel had advised him that he had not obtained an agreement which would release him from liabilities under the mortgage. There was no error. The evidence was competent. Insistence upon the agreement as the basis of an action at law was inconsistent with his contention at the trial that it did not express the contract of the parties. His remedy if there had been mutual mistake was by a bill in equity. Misunderstanding on his part would not make out mutual mistake. Levin v. Bernstein, 269 Mass. 542, and cases there cited. The first of the defendant’s eight requests for rulings was not proper subject of a request. Under Rule 45 of the Superior Court (1923), it was matter for a motion. The third, fourth and fifth were inapplicable where no fraud was found. The eighth was inapplicable in the absence of a finding of breach by the plaintiff. The seventh could not be given if the judge found, as he did, that the facts did not sustain it. The sixth likewise could not be given. The plaintiff’s purpose to acquire a method by which he could obtain money damages from the defendant rather than [198] the acquisition of the mortgage is not a legal bar to an action on the agreement obtained. The second, “If you find in relation to this contract that the plaintiff understood and intended one thing and the defendant understood and intended another thing, then the minds of the parties never met and there is no contract, and the verdict should be for the defendant,” does not state the rule of law applicable here. Where parties, intending to contract, sign a written agreement in language adopted by them, the words of the writing, in the meaning given them by the law, constitute the contract upon which their minds have met. Mears v. Smith, 199 Mass. 319. Western Newspaper Union v. Dittemore, supra. That is what these parties did. We find no error in the construction given the agreement by the trial judge. Exceptions overruled.