
    Robert C. SECHREST vs. George SAFIOL, et al.
    
    September 9, 1980
    District Court Department Appellate Division, Southern Distr Trial Court of the Commonwealth of Massachusetts
    
      Edward C, Donlon for the plaintiff.
    Roy D. Toulan, Jr., for the defendant.
    Present: Rider, J., Welsh, J., and Black, J.
    
      
      The other defendant is Stanley E. Colllnson, d/b/a Hill and Co '
    
   WELSH, J.

This is a civil action sounding in contract, in which the plaintiff seeks the return of a deposit of $3,800.00 paid on account, of a purchase and sale-agreement between the plaintiff as seller, and defendant, George E. Safiol, as buyer. The other defendant, Stanley E. Collinson, Jr., was the real estate broker who had held.the deposit and who deposited the money so held into court agreeable to an order allowing him to do so. Collinson was, in effect, a stakeholder who did not participate in the litigation as a party after the money was paid into court.

By way of answer, defendant Safiol asserts that he properly exercised an election given him by the terms of the agreement to cancel the contract because certain conditions precedent were not met.

The trial judge found for the defendant Safiol and ordered that the deposit money paid into court be turned over to him, and judgment was entered accordingly.

The plaintiff filed certain requests for rulings of law in connection with its claim against the defendant Safiol, all of which were allowed by the trial judge. The requests for rulings are set forth in the footnote. No claim of error may be asserted, by the plaintiff based upon the court’s action allowing the rulings he requested. Franco v. Marinow, 58 Mass. App. Dec. 29, 33 (1976); Louis F. Casella Inc. v. Citizens Ins. Co. of New Jersey, 27 Mass. App. Dec. 60, 63 (1963); Korb v. Albany Carpet Cleaning Co., 301 Mass. 317, 318 (1938).

The plaintiff filed certain requests for rulings of law in connection with the defendant Collinson, the broker. These requests, which were allowed but deemed inapplicable in view of the facts'found, áre set forth in a footnote. Requests for rulings may properly.be refused where rendered inapplicable by the court’s findings of fact. Jaquith v. Morrill, 204 Mass. 181, 187, 188 (1910); Hetherington & Sons v. William Firth Co., 210 Mass. 8, 18 (1911). In the instant case, the requests for rulings were allowed, pre'sumably because the judge determined them to be accurate statements of the law in the abstract, but either immaterial because inconsistent with the facts he found or otherwise inapplicable. See: Viera v. Balsamo, 328 Mass. 37, 39 (1951). The allowance of requests for rulings afford no basis for appellate review at the instance of the proponent of the requests for rulings and the'Appellate Court has no duty to consider the correctness of such action. Korb v. Albany Carpet Cleaning Co., supra, p. 318; Woodman v. Haynes, 289 Mass. 114, 118 (1935); Baker v. Davis, 299 Mass. 345, 348 (1938). The Appellant neither argued orally nor in his brief the propriety of the court’s action on the requests for rulings and we deem them waived on appeal. Holliston Mills, Inc. v. Plimpton Corp., 55 Mass. App. Dec. 43, 51 (1974); Dist./Mun. Cts. R. Civ. P. 64(f).

An even more fundamental reason appears for not reviewing the rulings requested by the plaintiff as to defendant Collinson, The docket entries show that on February 15, Í979 the court allowed the defendant Colliñson’s motion for leave to deposit the funds he was then holding with the court. Upon payment of the money into court, defendant Collinson might have been discharged as a party defendant in the court’s discretion. The plaintiff did not take any steps to preserve for appeal purposes any elaim of error he might have had to such action by the trial judgp No request for report appears to have been filed by the plaintiff with respect ta said action. Furthermore, the plaintiff in his brief asserts his willingness to dismiss his claim against the broker, the defendant Collinson, who did not participate at the trial and who is not a party to this appeal. In view of this assertion, we deem any.requests for rulings as to the defendant Collinson as waived.

The report that was submitted to this division is flawed by a number of significant substantive and procedural infirmities. First, the report fails to contain any statement indicating unequivocally the action of the trial court by which the plaintiff-appellant claims to be aggrieved. There is no clear identification of the ruling or rulings about which the plaintiff complains. Such a siateme'ht is mandatory, Dist./Mun. Cts. R. Civ. P. 64(c)(2); Dillon v. Framingham, 288 Mass. 511, 513 (1934); Altshuler v. Field, 336 Mass. 761, 762 (1958).

This deficiency takes on increased significance in this case because no request for report, apart from a draft report, was ever filed. Of course, a seasonably filed draft report is deemed to include a request for report. Dist./Mun. Cts. R. Civ. P. S4(c)(l)(i). When this alternative method of perfecting an appeal to the appellate division is elected by the appellant, it is crucial that the report contain a clear and concise statement of the rulings or other actions by which he r’ ",ims to be aggrieved, and how he claims iO be prejudiced by such rulings. The “Draft Report Model”, which is incorporated by reference as part of Dist./Mun. Cts. R. Civ. P. 64, ought to ie scrutinized by counsel and by the court, and followed as closely and as fully is the circumstances of the case permits. Altshuler v. Field, supra, P. 761; Tranfaglia v. Security National Bank, 50 Mass. App. Dec. 85, 87 (1973). Second-y, the report does not contain in narrative orm a statement of the evidence pertinent o the issues on appeal. Rather, it is stated n the report that the judge’s findings of act accurately summarize the evidence at he trial. While perhaps uot totally imer in some cases to combine the judge’s proper in some cases to combine the judge’s findings of fact with a statement of evidence. See: Olofson v. Kilgallon, 362 Mass. 803, 805 (1973) the practice is to be discouraged; The appeal process is measurably facilitated by a clear demarcation between the findings of fact and statements of the evidence. Again, preparation of the draft report by the appellant in accordance with the format prescribed achieves not only desirable uniformity but also tends to obviate omissions due to oversight. The responsibility for the report that is ultimately submitted to the appellate division is not only that of counsel, but primarily that of the judge settling the report. Preparation of the report should be carefully supervised by the trial judge, not only with a view towards its substantive content and completeness, but also as to adherence to the prescribed form and other procedural requirements. Kelly v. Foley, 284 Mass. 503, 509 (1933); Perry v. Hanover, 314 Mass. 167, 168, 169 (1943); Tranfaglia v. Security National Bank, 50 Mass. App. Dec. 85, 87 (1973).

Appellant’s principal contentions are that the judge’s findings are inconsistent mutually and that the judge’s finding that the defendant made a sufficient effort in good faith to bring about the happening of1 the conditions precedent contained jn the real estate sales contract, was not sup-

ported by evidence.

The trial judge filed the followim' '--P'-Ua! findings of fad:

“This is an aetiosufi o-»< /;•*...■ í *: by Robert C. Sechrest (Plaintiff) against George E. Safio! (Definida.. A) to retain as liquidated damages money paid as a deposit on the pui-eDuc of real property in Wellesley. Massachusetts.
After hearing the evidence and examining the exhibits * find l hat on September 20,1977 the Plaintiff and 'the Defendant signed a formal purchase and sales agreement \vhereby the Defendant agreed to buy land belonging to the Plaintiff on Wood-cliff Road in Wellesley, Mass. The Defendant paid a deposit of $3.800.00. The time for performance and delivery of the deed was .October 21, 1977 subject to paragraphs 31-34 of the purchase and sales agreement (PIT, Exh. 1). By mutual agreement of the parties the date for performance was extended to December 9,19 77 IN' I he reason that the Defendant hud nor obtained all permits and approvals reasonably necessary for Lie construction of a single family residence on the fand in question. On Dc- ember 9, 1977 the Defendant, through his lawyer, orally and in writing notified the Plaintiff that he was canceling the agreement in accordance with the provisions of paragraph 31 of the • agreement. The written confirmation of the defendant’s cancellation was hand delivered to the Plaintiff on December 9. 1977 nr about 6:00 a. ;1! v.ome ri-.e defendant ific r.m.-ii! ,9 ihi. deposit money. At no time did the Defendant submit an application or plans to the Town of Wellesley for a building permit or any other approval necessary from the Town for the construction of a single family residence. The real property in question was located in a ptimo residential area of Wellesley and the defendant intended to have a custom home constructed on the site. Following the execution of the purchase and sales agreement the Defendant employed the services of an architect to design a custom home. The services 'of the architect were paid for by the defendant by checks dated October 37,1977 and November .4, 1977, each checkin the amount of $800.00. The architect prepared preliminary drawings and the Defendant settled upon a builder to whom the preliminary drawings were submitted for a price,
in November of 1977 and before the builder and the Defendant finalized a contract the builder informed the Defendant that he would not be available for construction. Thereupon the defendant spoke to several other builders and although he received building estimates, the plans were never finalized nor was a builder agreed upon The Defendant was informed that the extension to December 9, 1977 was the last that the Plaintiff would allow and since his plans were not finalizec he canceled the agreement in accordance with paragraph 31 of the pur chase and sales agreement. I, there fore, find that the Defendant acted ii good faith in his dealings with th< plaintiff, made all reasonable effort: to get finalized plans, took reasonabh steps .to comply with the terms of tb agreement, and gave proper notice o cancellation in accord with the pur chase and sales agreement.”

The judge, upon motion, amplified 1 finding's of fact by filing additional fir ngs of fact after entry of judgment. Dist./ Víun. Cts. R. Civ. P. 52(h); The additional indings are as follows:

“Only the Buyer was represented by counsel in (he iWuntiop of ike Agreement.
After-the Aptve.-.via wur wmttvv the parties had no dinvi eoiiur.imwation with one another, and a 11 communications refiling to performance under the Agreement wen, initiated by Buyer’s attorney.
The only i w.-mninícní '¡¡¡',: i,s.o Seller by Bu-, ei s :w <»i spy dm wy pi", BOdaysbeuvee--Sc jicv-xv lay - ‘.>77 and Decernbct 9, IS* 77 ocean on mi October 14, November 14, i.-nd November 22, dams upon which Buyer’s time to perform was scheduled to expire.'

The trial judge indicated in she- vn|A,.t :hat there was '“additional evidence , which established the inflowing, lucís which appellant believes to be nmteiia! to his appeal:

“Buyer’s attorney was instructed to cancel the Agreement on December 9, 1977 by house counsel ir-i American Biltrite, the company, ot which Buyer was.president.
Buyer did not o.-mmui-pcíite to •. <Tc-the fact that in November of i 977 builder had informed hint that he would not be available for consume tion.
The estímales received ft out builders subsequently omtacied by Buyer were higiier than the osticu-ie which had been given by the i<'-ai builder.
Neither Buyer nor any representa tive of his communicated m any way with the Town’s building inspector or his office.
Nothing about (he lot is self pi e\ orbed Buyer from applying ¡or a BuHdiug permit.
A permit apphcaiion in proper form would contain plans which showed elevations, foundations, floor plans and framing.”

The proper method to obtain review an alleged inconsistency between Endim of fuel, of atrial judge is initially to bring to his attention, by way of a motion to correct the inconsistency or a motion for a new Kelsey v. Hampton Court >io:D i •- .. 4,-7 Mass. 150, 153 (1951); A- ; /.xlowski, 351 Mass. 708 {> ’ ; ;■ a request for report lies sly a ruling of law and not a fimlhiv of fact Butler v. Cromartie, 339 í -iw- ■ 4, ó í 1959); Muir Brothers Co. v. Mr;*vy,is' Construction Co., 328 Mass. ¿Ct 414-415 (1952). A request for *-.{ .->••, m.r.-.j ..«ted .by a prior request for xTx; T lrw, thai appellant was ag•‘.i ■•><;' Ay !indings of fact generally does *H»t dir . question of the sufficiency of uvidoii'A. to support such findings. Massachusretts General Hospital v. Quincy, 348 Mass. 791 (1965). The appropriate math Tthe sufficiency of evidence í<j sapi.” "i i me íhidiiuvof the judge is by a wmam Mí i Ting that the evidence either wí-uík.v or Ooes not warrant such finding Reid v. Doherty, 273 Mass. 388, 389 (1930). Smcc the findings of the trial judge v."*i bused at ieasr in part uppn oral evidence, we are not at liberty to substitute cm- c-‘ -i 1-Terences and conclusions for !¡h; Axaxáüs v. Metropolitan-Life Ins. Co.. Mass. 215, 221 (1936). Such fin jayai.'.', noi be disturbed on appeal if sixy ak supported by arty rational view of T-- evidence Barttro v. Watertown Nsa-x-'-'TIsAYi-.-w Inc., 309 Mass. 223, >: MacDonald v. Adamian, «A-h .v 187, 190 (1936) We con..jf'-l- ,i ix. jidge’s findings were not jV.-j.mx '..r. -mi. See: Gidwani v. Wasserbx-:.:., In?., 166 (1977).

' aa.-p’ .<4¡nuce on the case of SuisL ■' McCarthy, 336 Mass. 399 (<9j 7) ¡b mi„piaced. The reported evidence i» that case afforded no basis for the ; 4 i termination that the sani- < id -a au-j virtually condemned the site, -:»■ ni;/ obv1 -ting the need for further -J < Iv . about the happening of the e xbak a ;.>xcec.en£. Since it was this fi runny-dmi pJor,npted the judge’s conclusion día. (he developer was excused from pertotv mico, ¡he court reversed Id., p. 404 A:.; i-u, in contrast to the instant ' ,.- f’nnfdid file a request for ruling as to the sufficiency of evidence to war - rant a finding that the plaintiff used reasonable effort to obtain the necessary approvals. id., p. 402. Generally, the question of whether reasonable effort was employed to bring about the happening of a condition precedent is a question of fact. The court’s exposition of the allocation of the burden of persuasion on the requirement of “reasonable effort” is both pertinent and instructive:

“2. Even under an express requirement that ‘reasonable effort’ be employed, uncertainty necessarily will exist about what effort must be made. Compare Widebeck v. Sullivan, 327 Mass. 429, with Ross & Roberts, Inc. v. Simon, 326 Mass. 12, 15-17. In each instance it is a question for the. trier of the facts whether reasonable efforts have been exerted. However, the plaintiff, in order to show that he has done enough to meet the condition precedent to his to cancel, need prove not absolute impossibility, but merely activity reasonably calculated to obtain the approval by action or expenditure not disporportionate in the circumstances. Compare Forester v. O’Connell & Lee Mfg. Co., 328 Mass. 377 (where, although the agreement did not expressly require efforts by the vendors, the court, at pages 379-380, stated that the inference was justified that reasonable efforts had been made); Livoli v. Stoneman, 332 Mass. 473, 475-476 (where the agreement was held not to require action ‘at any cost’ to the buyer).”

We determine that there was no prejudicial error and order that the report be dismissed.

So ordered.

Daniel H. Rider, J.

Robert A. Welsh, Jr., J.

Charles E. Black, J. 
      
       1. Where conditions relate to a Buyer's performance under a real estate Purchase and Sale Agreement, Buyer is obliged to use good faith and to take steps to attempt to fulfill such conditions and cannot seize upon his own Inaction as the basis for terminating on the ground of non-fulfillment.
      2. Where the extension period In a business agreement, ends on a Friday, unless otherwise stated the extension period ends as of the close of business on Friday.
      3. Where Buyer under such an agreement claims, that the nonfulfillment of a condition relating to his performance entitles him to cancel the Agreement, he cannot assert such a claim where his announcement of “cancellation" occurs after the extension deadline has expired.
     
      
       4. Where an agreement states that a broker holds the deposit as agent for the Seller, in the event Buyer fails to consummate the Agreement for reasons solely attributable to the Buyer, the broker is obliged, under his agency, to turn the deposit over to his principal, the Seller.
      5. A broker who, under the circumstances set forth in #4, refuses to turn the deposit'over to his principal, the Seller, is liable for damages for the breach of the agency, consisting of interest on said deposit from the date of his breach or refusal up until the date he pays the deposit money into court.
      6. A broker who, under the circumstances set fortfj in #4, refuses to turn over the deposit to his principal, the Seller, is obliged under h'ls agency to place the withheld deposit Into an interest-bearing bank account.
      • 7. A broker who, under the circumstances set forth in #4, refused to turn over the deposit to his principal, the Seller, claiming he is a stakeholder, is liable for interest on said deposit funds.from the date he.is servecfwith process up until the date on which he pays the deposit funds into court.
     
      
       The defendant Collinson took the position that he had no interest in the fund and sought to’ pay the money into court So as to require the plaintiff and defendant to litigate inter sese. See: Gonia v. O'Brion, 223 Mass. 177, 178 (1916); Mass. R. Civ. P. 22; Mass. R. Civ. P. 67: After the money was paid into • court agreeable to order to do so, Collinson took no further part in the case.
     
      
       Brief of plaintiff-appellant P. 7 f.n.2: No judgment was ever entered in the trial court disposing of claims by and against the defendant Collinson. Mass. R. Civ. P. 54(b).
     
      
       In fact, the report fails to disclose which party or parties claim to be aggrieved. This has been held to be improper as to form. Reed Lumber & Coal Co., Inc. v. Kreft, 12 Mass. App. Dec. 157, 158 (1956).
     
      
       But see: Menotomy Realty Corp. v. French, 55 Mass. App. Dec. 21, 30-31 (1974), wherein findings were not deemed to be a recital of evidence.
     
      
       Article 31 of tho agreement if» "Ino BUYER’S obligations unde1, this agroonv'ní uni cor.ditioned upon BUYf-R obtaining front tbo pmper public authorities all permite and oRiur d[J[mm/¿iIí« reasonably necessary, in the jutinrrufiT of BJ IYER'S attorneys, fot construction of a single family residence, similar to those in the neighboi hood, r.n rho land being purchased under this agreement, h ¡be BÚYER has not obtained all sin h peimi.u and approvals, with appeal periods, It any. naving expired, on or before October Í4, 19/7, titan at rho BUYER’S option all payments marly map unclot by the BUYER shod bn refunded *oribvmfi uñ i obligations of the parties herí to shall (.ons^and this agreement shall bo void and without iccourse to the parties hereto " ' v
     