Tauro v. Fitzmaurice

Massachusetts Appeals Court

Tauro v. Fitzmaurice

387 N.E.2d 156, 7 Mass. App. Ct. 884

CourtMassachusetts Appeals Court

DecidedMarch 19, 1979

StatusPublished

Cited by2 cases

This text of 387 N.E.2d 156 (Tauro v. Fitzmaurice) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tauro v. Fitzmaurice, 387 N.E.2d 156, 7 Mass. App. Ct. 884 (Mass. Ct. App. 1979).

Pincite

Opinion

Summary judgment was erroneously entered for the plaintiff (buyer) for (1) rescission of a purchase and sale agreement with the defendants (sellers) and (2) a return of a deposit he had made under the agreement toward the purchase price, on the basis that he had been unable to secure a mortgage loan at the rate of interest set forth as a condition in the agreement. The pleadings, the parties’ motions for summary judgment, and their affidavits (Mass.R.Civ.P. Rule 56[a] and [e], 365 Mass. 824,825 [1974]) raise a genuine question of a material fact as to whether the plaintiff waived this condition, and show that "a precise appraisal of the knowledge and situation of the parties at the time they acted” is required. Nichols v. Cities Serv. Oil Co., 256 F.2d 521 (4th Cir. 1958). Compare Community Natl. Bank v. Dawes, 369 Mass. 550, 558-559 (1976). The defendants were entitled to a trial on the merits. Perry v. Schlaikjer, 5 Mass. App. Ct. 866 (1977).

Judgment reversed.

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Summary judgment was erroneously entered for the plaintiff (buyer) for (1) rescission of a purchase and sale agreement with the defendants (sellers) and (2) a return of a deposit he had made under the agreement toward the purchase price, on the basis that he had been unable to secure a mortgage loan at the rate of interest set forth as a condition in the agreement. The pleadings, the parties’ motions for summary judgment, and their affidavits (Mass.R.Civ.P. Rule 56[a] and [e], 365 Mass. 824,825 [1974]) raise a genuine question of a material fact as to whether the plaintiff waived this condition, and show that "a precise appraisal of the knowledge and situation of the parties at the time they acted” is required. Nichols v. Cities Serv. Oil Co., 256 F.2d 521 (4th Cir. 1958). Compare Community Natl. Bank v. Dawes, 369 Mass. 550, 558-559 (1976). The defendants were entitled to a trial on the merits. Perry v. Schlaikjer, 5 Mass. App. Ct. 866 (1977).

Judgment reversed.

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Bluebook (online)

387 N.E.2d 156, 7 Mass. App. Ct. 884, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tauro-v-fitzmaurice-massappct-1979.

Opinion

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