Practice, Civil, Appeal, Finding of judge. Contract, Construction, Implied in law, Performance and breach, Consideration.
An appeal from an order made by a judge of the Superior Court, like other appeals, raises only such questions of law as appear by the record, and facts which do not appear by the record cannot be supplied by statements in the appeal itself.
Where a trial judge, before whom an action of contract has been tried without a jury upon a declaration containing five counts, makes a general finding for the plaintiff in a certain sum, the finding must stand if the evidence will support it on any count. In the present case it was apparent from the record that the finding must have been made on one or more of three counts out of the five of the declaration and that at least on one of them the finding was warranted by the evidence.
A contract, giving an option to purchase a parcel of land for $4,410, of which $100 was to be paid on delivery of the option and $300 was to be paid on delivery of the deed, contained the following provision as to the payment of the balance of the purchase money: "The purchaser may obtain as large a loan as possible from some savings bank and said [vendor] will take back a mortgage for the balance, securing a note of the purchaser." Held, that this provision meant that, if the purchaser was unable to procure a loan on the property from a savings bank, he could give his own note and mortgage for the entire balance of the purchase money.
In an action for $100 had and received by the defendant to the plaintiff's use, there was evidence that $100 was paid by the plaintiff for a contract of option in writing to purchase a strip of land from the defendant for $4,410, the $100 to form a part of the purchase money if the conveyance was made, and to be retained by the defendant as liquidated damages if the plaintiff failed to exercise his option within the time named, that $300 was to be paid on the delivery of the deed and the balance was to be paid by a note secured by mortgage, that the plaintiff paid the $100 at the date of the agreement, that on the last day of the option he was at the office where the papers were to be passed with $300 ready to carry out the terms of the agreement, and that he so informed the defendant by telephone, whereupon the defendant refused to come to the office or to carry out the contract. Held, that a finding was warranted that the plaintiff was entitled to the return of the $100.
A contract under seal requires no consideration.
De COURCY, J.
The plaintiff appealed from the order allowing an extension of time for presenting the bill of exceptions to the presiding judge for allowance under Rule 64 of the Superior Court. Assuming that the appeal is properly before us, it must be dismissed. An appeal raises only such questions of law as appear by the record. There is in this record nothing to sustain the allegations of fact in the plaintiff's motion, such as the date of filing and that of allowing the exceptions. Fay v. Upton, 153 Mass. 6.
As to the defendant's exceptions. If the evidence would support any count in the declaration, the general finding for the plaintiff must stand. It is clear, however, that the trial judge did not make his finding on the third count, based on loss of profits, because he refused to give the sixth ruling requested which would be applicable thereto. And it must be assumed also that he did not find on the fifth count alleging the impossibility of performing the contract, because he ruled, as requested by the defendant, "that the plaintiff must prove that he was not only able but ready to perform."
The purchase price of the property was $4,410. A payment of $100 was made on the date of the agreement, $300 were to be paid at the time of the delivery of the deed, and the balance was to remain on mortgage. As we construe the agreement, if the plaintiff was unable to procure a loan on the property from a savings bank he could give his own note and mortgage for the entire balance of $4,010. It could be found that on the last day of the option, so called, he was at the office where the papers were to be passed, with the $300, ready to carry out the terms of the agreement, and so informed the defendant by telephone; and that the defendant declined to come to the office or to carry out the contract. Upon such breach of the agreement the plaintiff became entitled to a return of the deposit money. This, with other corroborative evidence, furnishes ample support for the finding under the first count. Whether there was evidence to warrant a finding under the second and fourth counts also, need not be considered.
As to the extension of the time for carrying out the sale, it is sufficient to say that the agreement to do so was under seal, which imports a consideration. Roth v. Adams, 185 Mass. 341.
We find no error in the judge's refusal to rule as requested.
Order appealed from affirmed. Exceptions overruled.