
    Robert Blakeslee vs. Lena Guardione and another
    
    Western District
    May 21, 1981
    Present: Walsh, P.J., Greenberg & Lenhoff, JJ.
    Murray Shulman for the plaintiff.
    Alan R. Goodman for the defendants.
    
      
       Anthony Guardione.
    
   Greenberg, J.

This is an action in contract and tort sounding in deceit, in which the plaintiff seeks to recover damages and lost profits arising out of an agreement to rent real and personal property owned by the defendants. Plaintiffs complaint contained twelve counts, six against each defendant. Three counts against each arose out of a July 18, 1977 episode, wherein the plaintiff alleges he was fraudulently induced into making improvements to property of the defendants preparatory to the opening of a grocery business at 161-165 Hancock Street, Springfield, Massachusetts. The remaining counts against each are based upon a written instrument dated November 16, 1977, wherein the plaintiff agrees to buy the premises on May 1, 1978 and the defendants agree to sell and give title free of existing encumbrances.

The defendants’ answers contained a general denial and a counterclaim including counts for lost profits due to the plaintiff’s alleged breach of the agreement to purchase the realty; for reasonable rental value of the premises; for damages to the premises due to waste; and for conversion of equipment or personal property. The plaintiff generally denied the counterclaim.

The trial judge found for the plaintiff without specifying on which counts in the sum of Three Thousand Five Hundred Thirteen Dollars ($3,513.00) with interest and costs. On defendants’ counterclaim, the trial judge found for the plaintiff on all counts, from which the defendants appeal.

We summarize the evidence as follows: Anthony and Lena Guardione sold a small neighborhood grocery business to Mary and George Guarandino in 1961, retaining the real estate on which it was operated. The Guarandinos agreed to rent the property for $125.00 per month. In 1973, Maty Guarandino rented the store to persons who operated it under the name of Chabazz Superette. Guarandino ceased paying the original $ 125.00 rental to the Guardiones and was in default for an unspecified period of time. In June of 1977, when the sub-tenants ceased paying rent to Mary Guarandino, Lena Guardione, one of the defendants and present owner of the premises, received the keys to the store.

In July of 1977, the plaintiff, Blakeslee, contacted the defendant owner and indicated his desire to rent the store and its equipment for $200.00 per month, to commence forthwith. The plaintiff stocked inventory, cleaned, did repairs and trained personnel to operate a Dairy Mart Store at the location until the latter part of July, 1977, when two unidentified persons came into the store and indicated they had acquired the right to rent the store and its equipment.

The plaintiff met with the defendant and her attorney, who subsequently commenced an action in the District Court against the sub-tenants for past rent and storage charges. The plaintiff, however, did not continue the operation and vacated the premises. Plaintiff testified that he incurred $3,231.70 in expenses for repairs and improvements until July 25, 1977.

The next time the parties communicated was when the defendant, Lena Guardione, left a note and other pertinent documentation from her attorney at a store operated by the plaintiff elsewhere in Springfield. These papers indicated that the suit against the sub-tenants had resulted in a default judgment.

In mid-November, 1977 the plaintiff, now interested in purchasing the property, contacted the defendant, Lena Guardione and an agreement, dated November 16, 1977 was executed, under the terms of which a deed was to be delivered on or about May 1, 1978 for a purchase price of $17,000.00. Certain credits, representing the July, 1977 rental, were given to the plaintiff and the balance of the purchase price was to be paid in installments over four years.

Defendants’ default judgment against the prior tenants went to execution and a sheriff’s sale was planned for January 23, 1978 on the equipment located in the 165 Hancock Street premises.

The plaintiff was notified in December by defendants’ attorney of the sale. On January 23, 1978, both parties were present when the plaintiff indicated that he was no longer interested in performance of the purchase and sales agreement. During the following three months, the defendant contacted the plaintiff requesting a surrender of the keys. On the evening of March 23, 1978, the plaintiff indicated that an imminent decision on his part would be made concerning performance of the agreement. Shortly thereafter, plaintiff commenced the present action, but did not complete surrender of the keys until April 19, 1978.

At the close of testimony and before argument, the defendants filed thirty-seven requests for rulings, all of which were allowed, with the exception of the following numbered requests:

26. Even if sellers breached their agreement, the buyer (plaintiff) was not entitled to bring his suit before the time for performance had expired. Daniels v. Newton, 114 Mass. 530 (1874) (DENIED)
27. Buyer breached his agreement to purchase real property by bringing suit before the closing. (DENIED)
32. As a matter of law, the plaintiff cannot recover under Counts I-XII. (DENIED)
33. The written agreement dated November 16, 1977 was wrongfully repudiated by plaintiff on the date of the public auction, January 23, 1978, for which breach defendants are entitled to damage. (DENIED)

In respect to these denials, the court made no written findings of fact. The defendants claim to be aggrieved by the court’s failure to make findings of fact pursuant to Dist./Mun. Cts. R. Civ. P., Rule 52. Secondly, the defendants contend that the plaintiffs action was prematurely brought, since the time for the defendants’ performance had not expired. We deal with these requests in the order of their relevance.

The defendants’ first contention, that the court erred by not making special findings of fact, is governed by Dist./Mun. Cts. R. Civ. P., Rule 52, which provides in part that “in all actions tried upon facts without a jury, the court may (emphasis added) find the facts specially and state separately its conclusions of law thereon.” Such language is discretionary and does not require findings of fact. In Chelmsford Colonial Real Estate Company, Inc., d/b/a Colonial Real Estate Company v. George Forrest, et al., 58 Mass. App. Dec. 35 (1976), we held that the duty of the justice is to pass upon relevant requests for rulings of law in such a way as to make plain that he has not fallen into error and to decide the case. See also Home Savings Bank v. Savransky, 307 Mass. 601, 603 (1940). Applying these principles to the case at issue, even though no memorandum of findings was filed, the trial justice, by his denials, made plain a matter of law, his disagreement with the defendants’ principal contention that the plaintiff was not entitled to bring his action prior to the time for performance set forth in the agreement. This conclusion, as a matter of law, is the linchpin upon which the trial judge fastened his denials.

The issue sought to be raised by the remaining rulings requested by the defendants is whether the plaintiff was in breach of the purchase and sales agreement prior to the date of performance because of his initiating suit in March of 1978. Clearly, from the pleadings, it is apparent that the plaintiff sought to repudiate his obligations under the sales agreement based on allegations that the defendants improperly represented their ownership of the personal property located within the store, in order to induce the plaintiff to enter into the purchase agreement. The defendants’ requested ruling #33 was denied, indicating that the plaintiff lawfully repudiated prior to the date of performance by reason of the lack of marketable title to the equipment subject to the sales agreement. Therefore, we cannot speculate or assume contrary facts to exist. Armata v. McDonald, et al., 56 Mass. App. Dec. 34 (1975).

The defendants further contend that even if they breached their agreement to sell the property, the plaintiff was not entitled to bring his action before the time for performance had expired. The plaintiff argues that the defendants did not have clear title to the real and personal property they had agreed to sell under the November, 1977 agreement; therefore, he claims that the defendants are in breach and that he could bring suit prior to the performance date.

The doctrine of anticipatory breach has not been adopted in Massachusetts. Daniels v. Newton, 114 Mass. 530(1874). As explained in Gillis v. Bonelli-Adams Co., 284 Mass. 176 (1933), the question becomes one of whether the title is so defective as to justify the purchaser in concluding that the defect is not likely to be cured. An affirmative answer would allow suit to be brought before the time for performance has expired.

In the instant case, the defect in title arose out of the previous sale and rental by the defendants to the Guarandinos. Once the defendants became aware of the defect, they brought suit against the Guarandinos. A default judgment was entered in this suit for the defendants, reduced to execution, and a levy made on the execution. A sale was subsequently held by the sheriff. It was at this time, before the defect in title had been removed, that the plaintiff withdrew from his agreement with the defendants and subsequently initiated suit. Since the defect in title had not been removed, the defendants were in breach and the repudiation could be maintained by the plaintiff. The judgment of $3,513.00 could not, therefore, be based on the counts of plaintiffs complaint, which were related to the November, 1977 purchase and sales agreement.

The court, however, did not state upon which of plaintiffs counts the judgment was based. Six of the counts were based on the breach of the July, 1977 rental agreement. The general rule is that where no findings of fact are made, the decision imports a finding of every fact necessary to sustain it. Matter of Loeb, 315 Mass. 191 (1943). The judgment of the court must, therefore, be assumed to be based on the counts related to the rental agreement, since it could not be properly based on the counts related to the purchase and sales agreement. A judgment based on a breach of the July, 1977 rental agreement was not an issue raised by the Report and, therefore, cannot be raised on appeal.

No prejudicial error having been found, the Report is dismissed. 
      
       The case favorably cites Volume 6 of Williston on Contracts (3rd Edition) §879 for the same proposition.
     