Mamber v. Levin
Mamber v. Levin
Opinion of the Court
The plaintiff appeals from a judgment dismissing his action to reach and apply an alleged indebtedness of the defendant G & D Realty, Inc. (G & D), to the defendant Levin, on account of appliances furnished to G & D by Levin.
The indebtedness is claimed to have arisen on the following facts. On April 20, 1972, Levin entered into an agreement with G & D to purchase certain land in Brock-ton with twenty-four apartment units which G & D was then building. The price was to be $411,000. Papers were to pass on or before April 20, 1973, and time was made of the essence. The agreement incorporated by reference an “addendum” which provided that G & D was to inform Levin of all appliances, rugs and cabinets to be installed on the premises and the prices G & D would have to pay for them, and that Levin, if he so elected, could himself furnish those items and be paid by G & D the price G & D would have had to pay elsewhere.
The judge found that Levin, for the purpose of furnishing appliances to G & D, went to Eastco, Inc., apparently a wholesaler or distributor of appliances, and applied for
On March 16, 1973, the plaintiff, who was found by the judge to have prepared the agreement as Levin’s lawyer and to have been a cotrustee with Levin of the St. Paul Realty Trust, obtained a judgment against Levin in the Municipal Court of Brookline for $95,651.75 for legal services, which remains unsatisfied. By this action the plaintiff seeks to establish that G & D was and remains obligated to pay Levin the $10,661.28 which G & D paid to Eastco.
The judge ruled (1) that the “addendum” concerning the furnishing of appliances was void because it was not signed by the parties; (2) that even if it had been properly executed it was void for lack of consideration because it did not impose any obligation on Levin; (3) that, even if the addendum imposed a contractual obligation on G & D, the defendant Levin could not enforce it because he was himself in breach of the contract for having failed to pay Eastco; (4) that Eastco extended credit to Levin as a trustee and not as an individual; and (5) that G & D was obligated to pay Eastco and was not obligated “to hold any monies for the benefit of either ... Levin or the plaintiff----”
Contrary to the contentions of G & D, the case cannot be disposed of on the basis of those rulings. The addenda, although attached as an additional page after the signature page, were incorporated by an appropriate reference and are a part of the contract. Freeland v. Ritz, 154 Mass. 257, 259 (1891). We do not look for consideration to each clause of a contract separately, but to the contract in its entirety; this contract did not lack consideration. On this record it cannot be said that Levin’s breach of his separate contract with Eastco was a breach of his contract with G & D. Eastco’s sale on credit to Levin empowered Levin to pass good title to G & D by delivery of the appliances.
For the reasons which follow, we are nevertheless of the opinion that the judge acted correctly, on the basis of those of his findings which are not now challenged, in ordering the entry of judgment for G & D.
The plaintiff’s rights are derivative; he stands in no better position than Levin. Polito v. Galluzzo, 337 Mass. 360, 363 (1958). Morse v. Employers’ Liab. Assur. Corp. Ltd. 3 Mass. App. Ct. 712 (1975). Levin would not be permitted to obtain from G&D payment of the full contract price for the appliances, for he would thereby be unjustly enriched by being paid twice for the same performance: once by the discharge of his debt to Eastco, and again by receipt of the purchase price from G & D. If Levin retained the benefit of the discharge,I *3
In effect, Levin would be entitled to a judgment only for the difference between the amount G&D had contracted to pay him and the amount he had contracted to pay Eastco (but which was paid instead by G & D) ,
Judgment affirmed.
We note, however, that the application is dated September 2, 1971.
The discrepancy in the figures involves some discount not explained by anything in the record.
There is no merit in the plaintiff’s contention (asserted in his brief to be “too obvious to require argument”) that the judge lacked power to vacate or modify interlocutory orders previously entered by other judges of the Superior Court. M. DeMatteo Constr. Co. v. Board of Appeals of Hingham, 3 Mass. App. Ct. 446, 457 (1975).
The effect of Levin’s power to disclaim the discharge of his indebtedness to Eastco (see Restatement: Contracts, § 421 [1932]; Edgeworth Co. v. Wetherbee, supra) need not be considered as he has not exercised that power.
The applicability (if any) of an anti-set-off provision in the addendum has not been briefed or argued, and we do not consider it. Mass. R.A.P. 16(a) (4), as amended, 367 Mass. 921 (1975).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.