JACOB KING & another vs. CHARLES H. CONNORS & others.
Supreme Judicial Court. Equity Pleading and Practice, Appeal, Decree.
On an appeal by the defendants from a decree ordering the specific performance of a contract to purchase certain hotel property from the plaintiff, entered by order of a judge of the Superior Court in pursuance of the rescript stating the decision of this court in King v. Connors, 222 Mass. 261, where the only question presented was whether the decree appealed from conformed to the rescript, it was held, that the decree must be construed in the light of the findings of the master confirmed by the decision of this court, and that it was not open to the defendants to discuss any issue thus disposed of.
It appearing in the case mentioned above that the only new matter in the decree was the requirement from the plaintiff of a bond to secure the defendants from any damages they might sustain by reason of the existence of a certain lease, it was held, that this provision, which was inserted in the decree solely for the protection of the defendants, could give them no ground for complaint.
DE COURCY, J. The only question brought before us by the appeal is whether the decree [Note p305] appealed from conforms to the rescript stating the decision of this court in King v. Connors, 222 Mass. 261. Phelps v. Lowell Institution for Savings, 214 Mass. 560. The defendants have not sought leave to open the case for a new trial by reason of matters which have arisen since the decision of the issues raised by the pleadings; and no such alleged facts can be considered on this appeal. The decree must be construed in the light of the facts as found by the master, and confirmed by this court. Attorney General v. New York, New Haven, & Hartford Railroad, 201 Mass. 370.
The complaint of the defendants is that the decree compels them to accept a title which is subject to "the possibility of a part of said premises being subject to lease referred to in Supreme Court opinion." Their brief is mainly a reargument of one of the main issues already tried and decided adversely to their contention. The opinion, based on findings of the master, which were not excepted to by the defendants, expressly stated: "The tenant
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. . . had promised in writing to execute a release and surrender the premises whenever required, within thirty days. This was a sufficient compliance with the contract." King v. Connors, supra. A rehearing on this issue is not opened by the appeal. See Nashua & Lowell Railroad v. Boston & Lowell Railroad, 169 Mass. 157, 162.
The only new matter in the decree is the requirement that the plaintiffs shall give a bond to secure the defendants from such damages as may be caused to them by reason of the alleged lease. This clause was inserted solely for the protection of the defendants, and in itself furnishes no ground for complaint.
Decree affirmed with costs.
F. J. Lawler, for the defendants.
H. E. Ward, (W. A. Davenport with him,) for the plaintiffs.
FOOTNOTES
[Note p305] Entered in the Superior Court by order of Sanderson, J.