Davis v. Tremont Trust Co. , 234 Mass. 502 ( 1920 )

De Courcy, J.

The plaintiffs, as trustees in bankruptcy of the New England Fireproof Construction Company, brought this bill in equity to compel the cancellation of thirteen construction mortgages held by the defendant upon as many lots of land in Brookline owned by the bankrupt corporation. The trial judge filed a finding of facts and ordered a decree for the cancellation and discharge of the mortgages upon payment of the amount due the defendant for taxes and interest. Instead of adopting the usual course of appealing from a final decree and bringing the entire evidence before us, the defendant has preferred to file a bill of exceptions. The record contains the pleadings, the judge’s findings of fact with the exhibits therein referred to, and the defendant’s requests for rulings; but it does not include any of the oral testimony.

In December, 1916, the New England Fireproof Construction Company (hereinafter called the Construction Company), was owner of a tract of land in Brookline comprising twenty-eight lots; and it arranged with the defendant for loans with which to erect houses thereon. Each lot was conveyed to a “straw man,” who simultaneously executed a construction mortgage and note to the defendant trust company and a “construction agreement” to erect an apartment house on the lot. These agreements were assigned to the Construction Company, which began to erect houses on lots numbered one to fifteen inclusive. Later the mortgages on these lots were foreclosed by the defendant. The rmortgages involved in the present suit are those on lots numbered sixteen to twenty-eight inclusive.

The first exception is to the admission in evidence of a letter or agreement, dated December 30, 1916, and signed “Tremont Trust Company, Benjamin H. Swig, Asst. Treas.,” wherein the time for the payment of all the mortgages was extended. It contained the following: “The Bank agrees to make an allowance for the interest paid by you on the thirteen houses from this date up to the day when concrete is started for a foundation in any one of the said thirteen houses, or up to the date when written notice to proceed on said buildings has been given to you by the Bank as provided above.” The alleged lack of authority in the acting treasurer is disposed of, in the absence of the evidence, by the judge’s finding that “the defendant, by Benjamin H. Swig, its assistant treasurer, then acting as its treasurer and thereunto duly authorized, entered into . . . [said] agreement.” He further finds: “At the time of the execution of this agreement, the bank gave credit on the mortgages on all of said lots by the indorsement on the back of each note of six months’ interest.” Nor can we say that this paper was inadmissible as varying the other written agreements. They were all delivered on the same day, and the-judge well may have found that the whole contract between the parties was not embodied in a single one of these agreements, but was to be gathered from all.

Another exception is to the judge’s refusal to give the defendant’s ninth request, relating to the payment by the Construction Company to one Culbert of a brokerage commission out of money advanced by the defendant. But this request was rendered immaterial by the judge’s finding that no money was advanced by the defendant on the mortgages involved in this suit.

No other exceptions have been argued by the defendant. But it may be added that those numbered 7 (c) and (d) are disposed of by express findings. As to 5 and 6 the finding of the judge is as follows: “It claims to hold said mortgages as security for six per cent interest lost, after the expiration of the time for which interest has been credited as hereinbefore set forth, while so holding the property, but I find and rule that it is not entitled to hold the same as security for said interest und.er the terms of the mortgage, the construction agreement, and the agreement dated December 30, 1916, hereinbefore referred to.”

Exceptions overruled.