Waxler v. Bottcher

Massachusetts Supreme Judicial Court
Waxler v. Bottcher, 257 Mass. 249 (Mass. 1926)
153 N.E. 535; 1926 Mass. LEXIS 1334
Carroll

Waxler v. Bottcher

Opinion of the Court

Carroll, J.

In this action of contract the plaintiffs recovered a verdict for a real estate commission in procuring a customer ready, able and willing to buy two parcels of land belonging to the defendants.

One issue at the trial was this: Did the prospective buyer, one Wilson, and the defendants, come to an agreement as to the terms of sale? The testimony of the plaintiffs tended to show that the parties agreed to all the terms. The testimony of the defendants tended to show the contrary. Mrs. Bottcher, one of the defendants, was called by the plaintiffs. She testified in direct examination that she listed the property with the plaintiffs and instructed them to procure a purchaser. On cross-examination by counsel for the defendants she stated that the second mortgage on the property was for $14,000, and was payable “the following January.” Epstein, one of the plaintiffs, testified that when the property was listed with the plaintiffs, the defendants said that the $14,000 mortgage was payable on demand, that Mrs. Bottcher did not say the $14,000 mortgage “came on demand the following January.” Wilson testified that “all the *251terms” were agreed on “before going to Attorney Clark’s office, except the terms as to the third purchase money mortgage.” On cross-examination he denied that Mrs. Bottcher said that the second mortgage was payable “on demand the following January.” He further testified that he agreed to assume the two mortgages. The plaintiff Waxier, on cross-examination,, testified that the Bottchers said the second mortgage was on demand, and they did not say it would be “on demand the following January.” Adolph Bottcher was asked by his counsel if the “$14,000 mortgage, was . . . talked about.” He answered, “I said that that mortgage becomes a demand mortgage” next January. The defendants then offered the mortgage note. This note dated January 15, 1919, and was “payable by installments as follows: $1,000 one year from the date hereof, and $1,000 at the end of each succeeding year thereafter for a period of five years from the date hereof, after which time the balance of $14,000 shall be payable on demand.” The note was excluded. The defendants excepted; they agreed to the statement of the presiding judge that the inquiry was in reference to what took place in the office of Mr. Clark. The defendants’ counsel further stated that the note was offered as bearing on “the credibility of the two stories.”

There was no error in excluding the mortgage note. It did not clearly appear that anything was said about the second mortgage at the office of Mr. Clark, or that there was any conversation at this interview concerning the time of payment of this mortgage. The defendants testified without objection that the mortgage became a demand mortgage the following January, and the note which was excluded did not tend to show what was said by the parties at the time the negotiations were carried on in the attorney’s office. The note was not admissible, on the facts disclosed in this record, to contradict the plaintiffs or corroborate the defendants. Even if the mortgage note were admissible, there was no prejudicial error in excluding it.

The second exception relates to the evidence of Wilson. He was asked if he intended to- have the third mortgage re*252main on the property after the purchase, and answered that he did not. This was excepted to by the defendants. Subsequently both the question and answer were excluded and the jury were instructed to disregard both the question and answer. To this ruling the defendant excepted. Even if the evidence were inadmissible, any possible error was prevented by this exclusion, and the judge could properly act as he did in telling the jury to disregard the evidence. It was not essential for the judge to refer again to the fact that the evidence was to be entirely ignored. Dempsey v. Goldstein Brothers Amusement Co. 231 Mass. 461. Lundin v. Post Publishing Co. 217 Mass. 213, 219.

Exceptions overruled.

Reference

Full Case Name
Samuel Waxler & another v. Adolph Bottcher & another
Cited By
1 case
Status
Published