Galkowski v. McManus ( 1926 )

Crosby, J.

This is a suit in equity in which the plaintiff seeks to rescind a certain deed of real estate given him by the defendants, to recover the purchase price paid, and for general relief.

The parties on August 8, 1924, entered into a written agreement by the terms of which the defendants were to sell to the plaintiff two parcels of real estate upon each of which was a three-tenement house occupied by tenants. The premises were to be conveyed on or before August 15, 1925, subject to a first mortgage on each parcel, the plaintiff agreeing to pay certain amounts in cash and the balance of the purchase price to be secured by a mortgage on the property conveyed. The plaintiff seeks to rescind the deed on the ground that he was induced to purchase the property by reason of false representations made to him by the defendants respecting the sums for which the tenements were rented. The case, was referred to a master. The plaintiff filed eighteen exceptions to the master’s report, and a motion to recommit the report. The trial judge sustained the first and the eighteenth exceptions and ordered the report recommitted. Thereafter the master filed a supplemental report, and an interlocutory decree was entered overruling the exceptions (except so far as previously sustained) to the report and supplemental report, and confirming the reports. A final decree has been entered dismissing the bill with costs, from which decree the plaintiff appealed.

As no appeal was taken from the interlocutory decree overruling the exceptions and confirming the reports, they cannot be considered unless the final decree is erroneously affected by the interlocutory decree. Burnett v. Commonwealth, 169 Mass. 417. Fay v. Corbett, 233 Mass. 403, 409, 410. We find nothing in the objections upon which the exceptions are founded from which it appears that the final decree is erroneously affected by the interlocutory decree. It follows that these exceptions cannot be considered. G. L. c. 214, § 27.

The master found that all the representations made to the plaintiff respecting the property were so made by one Rosenberg, a real estate agent, who represented the defendants in the transaction, and by the defendants’ bookkeeper, one Rose Gilbride; that between July 1 and July 15, 1924, the plaintiff and Rosenberg went to the shop of the defendants and there saw the bookkeeper; that Rosenberg inquired of her about the rents; that she told him in the presence of the plaintiff that each tenement was rented for $25 a month, but that she had increased the rents in one house to $28 a month and in the other house to $32 a month, to be effective from and after July 15, 1924.

The master further found that neither of the defendants ever saw or talked with the plaintiff before August 15, 1924, when they met him for the first time at the Worcester registry of deeds; “that the plaintiff before July 15, 1924, knew that all the tenants were paying $25 a month and that they all received notices from the defendant of increased rents to be effective July 15, 1924 . . . and that he signed the agreement on August 8, 1924, with that knowledge and took deeds from the defendants on August 15, 1924, with that knowledge.”

As the evidence before the master, so far as reported, justified his findings, they must stand. The granting of the plaintiff’s motion to amend the bill and his motions to recommit, which were made after the supplemental report had been filed, was a matter resting in the discretion of the court. The final decree dismissing the bill with costs was warranted upon the facts found by the master.

Decree affirmed with costs.