10 Mass. App. Ct. 929

December 5, 1980

This is an action brought in the Superior Court by which the plaintiff sought without success to recover damages for the alleged breach by the defendant of an agreement between the parties dated September 23, 1975, under which the defendant gave the plaintiff a right of first refusal of a lease of a cooperative apartment and the tied shares in a cooperative housing corporation which owned the building in which the apartment was located. That agreement provided in material part that "if Dupree proposes to assign the Lease and Shares to an unrelated third party within six months after the shift of economic interests . . ., Dupree must first offer the same to Kostick at the formula price." That "shift" occurred on October 3, 1978. The plaintiff bases his claim of a right of first refusal on an agreement which the defendant executed with a third party on February 17, 1978, in which the defendant undertook to assign the lease and shares to the third party on November 1, 1979. We fail to see how that agreement constituted a "propos[al] to assign the Lease and Shares . . . within six months after" October 3, 1978, whether we construe the six-month period as intended to relate to the date of the agreement with the third party or to the time for performance under that agreement. We have no authority to rewrite the agreement between the parties. See Van Dusen Aircraft Supplies of New England, Inc. v. Massachusetts Port Authy., 361 Mass. 131, 142-143 (1972).

Judgment affirmed.


10 Mass. App. Ct. 929

December 5, 1980

After the surrender of the defendant by the county probation department a judge of the Superior Court ordered him committed to a house of correction on a previously imposed suspended sentence. The defendant appeals from that order.

Page 930

This case has been argued on the footing that the defendant was originally sentenced to a suspended one-year term on a plea of guilty to a violation of G. L. c. 140, Section 128. [Note 1] The defendant claims this sentence is invalid. We agree.

"[W]here it appears, as it does here, that a defendant was sentenced for a crime other than that of which he was convicted, it is within the appellate power of this court to vacate the sentence and to take steps necessary to correct the error." Commonwealth v. Franks, 365 Mass. 74, 81 (1974). As the Commonwealth concedes that the defendant could only be fined on his first violation of G. L. c. 140, Section 128, a sentence of incarceration is perforce invalid.

The Commonwealth's arguments suggesting a waiver of certain statutory rights by the defendant and some sort of binding agreement miss the point completely.

We accordingly reverse the order committing the defendant and remand the case to the Superior Court for new sentencing of the defendant for his violation of G. L. c. 140, Section 128.

So ordered.


[Note 1] The defendant's conviction on his plea of guilty to an indictment charging a violation of G. L. c. 269, Section 10(h), as amended by St. 1974, c. 649, Section 2, was placed on file (apparently with his consent), and thus that conviction is not before us. See Commonwealth v. Delgado, 367 Mass. 432, 437-438 (1975).