Hurwitz v. Meltzer

Massachusetts Supreme Judicial Court

Hurwitz v. Meltzer

193 N.E. 25, 288 Mass. 488, 1934 Mass. LEXIS 1292

CourtMassachusetts Supreme Judicial Court

DecidedNovember 30, 1934

StatusPublished

This text of 193 N.E. 25 (Hurwitz v. Meltzer) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hurwitz v. Meltzer, 193 N.E. 25, 288 Mass. 488, 1934 Mass. LEXIS 1292 (Mass. 1934).

Pincite

Opinion

Lummus, J.

The plaintiff seeks contribution from the defendants, formerly his partners,' for a loss sustained because of obligations incurred in' the holding in his own name of title to real estate bought by the partnership. The plaintiff became liable on two mortgage notes, one for $5,500 to one York and a second for $6,950 to one DelPozzo. Afterwards, in 1923, the plaintiff conveyed the real estate to one Liss, who assumed and agreed to pay the mortgages. The partnership was dissolved in 1925, and no consideration was given to the liability of the plaintiff on the mortgage notes.

No loss on the DelPozzo mortgage note, the master and the judge have found, is chargeable to the defendants. But in 1929 the York mortgage was foreclosed, and the plaintiff bought in the real estate at the foreclosure sale for $3,550, giving a mortgage back to York for $3,500, nearly the whole purchase price, and paying to York the deficiency of $2,135.53 on the mortgage note. Thus he established [492]*492his loss as $2,135.53, for two thirds of which he seeks payment by way of contribution from his two partners, the defendants. Quintin v. Magnant, 285 Mass. 450.

The master and the judge found that the plaintiff’s right to such contribution was not impaired when, a few weeks later, the plaintiff conveyed his equity of redemption to the wife of Liss for $135 in cash and a second mortgage for $2,000, and thereby, assuming the second mortgage to be good, regained the amount lost. Since, however, the plaintiff has been compelled to take possession under his second mortgage, it remains uncertain whether in fact he will regain the amount lost or not. This transaction with the wife of Liss did not operate to release Liss from his guaranty of the York mortgage, which had been assigned by York to the plaintiff. In this they were right. The final decree giving the contribution claimed is affirmed, with costs.

Ordered accordingly.

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Lummus, J.

The plaintiff seeks contribution from the defendants, formerly his partners,' for a loss sustained because of obligations incurred in' the holding in his own name of title to real estate bought by the partnership. The plaintiff became liable on two mortgage notes, one for $5,500 to one York and a second for $6,950 to one DelPozzo. Afterwards, in 1923, the plaintiff conveyed the real estate to one Liss, who assumed and agreed to pay the mortgages. The partnership was dissolved in 1925, and no consideration was given to the liability of the plaintiff on the mortgage notes.

No loss on the DelPozzo mortgage note, the master and the judge have found, is chargeable to the defendants. But in 1929 the York mortgage was foreclosed, and the plaintiff bought in the real estate at the foreclosure sale for $3,550, giving a mortgage back to York for $3,500, nearly the whole purchase price, and paying to York the deficiency of $2,135.53 on the mortgage note. Thus he established [492]*492his loss as $2,135.53, for two thirds of which he seeks payment by way of contribution from his two partners, the defendants. Quintin v. Magnant, 285 Mass. 450.

The master and the judge found that the plaintiff’s right to such contribution was not impaired when, a few weeks later, the plaintiff conveyed his equity of redemption to the wife of Liss for $135 in cash and a second mortgage for $2,000, and thereby, assuming the second mortgage to be good, regained the amount lost. Since, however, the plaintiff has been compelled to take possession under his second mortgage, it remains uncertain whether in fact he will regain the amount lost or not. This transaction with the wife of Liss did not operate to release Liss from his guaranty of the York mortgage, which had been assigned by York to the plaintiff. In this they were right. The final decree giving the contribution claimed is affirmed, with costs.

Ordered accordingly.

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Bluebook (online)

193 N.E. 25, 288 Mass. 488, 1934 Mass. LEXIS 1292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hurwitz-v-meltzer-mass-1934.

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