Home R. R. RISS, SR., & another vs. IMPER REALTY CORP.

355 Mass. 793

March 4, 1969

The plaintiffs seek to restrain the defendant's action at law to recover a deposit for the purchase of land pending reformation of an agreement also sought by the plaintiffs on the ground of mutual mistake of the parties. There was no formal or integrated agreement. The agreement allegedly consisted of "about" four written communications by or on behalf of the plaintiffs and "about" six written communications by or on behalf of the defendant "in addition to conversations" by telephone and otherwise. The judge rightly sustained the defendant's demurrer and dismissed the bill. The contract, if any, was executory. The "mistake," if any, was unilateral. It allegedly was in a communication originating with the plaintiffs and in language of their choice which is clear and unambiguous. The reformation, even if made in the particular communication selected by the plaintiffs, would not necessarily establish the terms of the contract. Furthermore, it appears that the plaintiffs have conveyed the property. They cannot ask a court of equity, under the guise of a bill to reform an instrument, to discover and establish the terms of a contract which they are unable to perform.

Decrees affirmed with costs.

Home ATHOS V. LONGO, trustee, vs. DEPOSITORS TRUST COMPANY.

355 Mass. 793

March 4, 1969

The plaintiff mortgagor by his amended bill in equity seeks to restrain the defendant mortgagee from proceeding with a foreclosure of the mortgaged premises. The defendant's demurrer to the amended bill was sustained. The plaintiff appeals from a final decree dismissing the bill. There was no error. The amended bill shows on its face noncompliance with the conditions of the

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mortgage. Although the amended bill alleges the existence of an oral "agreement" modifying the conditions of the mortgage and compliance with the new conditions, it fails to allege a primary fact necessary to the suit. It is not alleged that the oral "agreement" was supported by consideration. Lane v. Sullivan, 302 Mass. 213 . Beckford v. Beckford, 329 Mass. 389 .

Decree affirmed with costs.