Simon v. Norcross
Simon v. Norcross
Opinion of the Court
The defendant appeals from a judgment in the Superior Court ordering that she specifically perform an agreement for the purchase and sale of a house and lot in Provincetown. The agreement, between the plaintiffs (husband and wife) as buyers and the defendant as seller, is on a stationer’s printed form and provides:
“and for such deed and conveyance the party of the second part is to pay the sum of
twenty-seven thousand ($27,000.00) --------------dollars
of which one hundred ($100.00) --------------dollars have
been paid this day, twenty-six
THOUSAND NINE HUNDRED (26,900.00) ---------------dollars
balance in cash on delivery of said deed.”1
This clause is followed by a typewritten provision (the mortgage assumption clause): “It is agreed between the parties that the purchasers shall assume and agree to pay the balance due on the existing mortgage with Cape Cod Cooperative Bank as part of the consideration of this sale and to save the seller harmless on account thereof.”
The trial judge ordered that the defendant convey the property to the plaintiffs “free from all encumbrances, upon the[ir] ... paying the sum of $27,000.00.” He made this determination on the basis of conflicting oral testimony regarding the purchase price, ruling that “the statement as to the purchase price contained in said agreement is ambiguous and that parol evidence was admissible ... to assist the Court in interpreting this language.” He found that the defendant had offered the property to the plaintiffs “for the mortgage,” which was in the amount of $27,000, rather than for $54,000 (the cash plus the mortgage) which the defendant testified she understood the price to be. We hold that the judgment cannot stand.
The provisions of the agreement relative to the consideration to be furnished by the buyers are sufficiently clear
We note that in each of the last two cases cited a total consideration is explicitly stated to include both cash and the assumption of a mortgage. This appears to be the more usual method of setting out the total consideration and its component parts; but it has no application in this case in
We thus conclude that the total consideration for the conveyance was comprised of $27,000 in cash plus the assumption of the mortgage. Since this emerges unambiguously from our analysis of the instrument itself, parol evidence cannot be used to vary it. Accordingly, the judgment is reversed, and the case is remanded to the Superior Court, where the plaintiffs shall be permitted to amend their complaint to allege the agreement as we have construed it; upon such amendment the agreement shall be specifically enforced by an appropriate judgment.
So ordered.
The underlined words are typewritten.
That clause provides: “It is agreed that as part of the consideration for this sale there shall be included such articles of furniture, and household furnishings and other items of personal property as shall appear on an agreed inventory ..(emphasis supplied).
As with the deed in the Lively case it is the equity of redemption which the defendant in this case agreed to convey “free from all encumbrances.” See Gerber v. Berstein, 295 Mass. 132, 136-137 (1936); Malden Knitting Mills v. United States Rubber Co., 301 Mass. 229, 234 (1938). If it were thought there were some inconsistency between this boiler-plate printed clause and the typewritten mortgage assumption clause, the latter would in any event have primacy. See Malden Knitting Mills v. United States Rubber Co., 301 Mass. at 232.
We do not understand the defendant to object to specific performance of the agreement as we have construed it. In any event such an objection would be without merit. Peters v. Wallach, 366 Mass. 622, 628-629 (1975).
Reference
- Full Case Name
- Steven R. Simon & another v. Helen M. Norcross
- Cited By
- 1 case
- Status
- Published