Alfano v. Donnelly
| Decision Date | 27 March 1934 |
| Citation | 189 N.E. 610,285 Mass. 554 |
| Parties | ALFANO v. DONNELLY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Municipal Court of Boston, Appellate Division; Good, Judge.
Action of contract by Frank Alfano against Mary J. Donnelly, trustee. From an order of the appellate division dismissing a report by the trial judge, who found for the plaintiff in the sum of $225, defendant appeals.
Order dismissing report affirmed.
J. M. Maloney, of Boston, for appellant.
S. B. Simmons, of Boston, for appellee.
The writ in this action of contract describes the defendant as ‘Trustee under the will of Edward C. Donnelly, doing business under the firm name and style of John Donnelly & Sons.’ Strictly, all that is surplusage. Apart from statute, common law practice knows no such thing as an action against a trustee in his trust capacity. Executors and administrators, sued for debts of the deceased, are wholly different. In contemplation of law, the present action is against Mary J. Donnelly individually, and if she is liable judgment will be rendered against her as an individual. Carr v. Leahy, 217 Mass. 438, 440, 105 N. E. 445;Gardiner v. Rogers, 267 Mass. 274, 278, 166 N. E. 763;Larson v. Sylvester, 282 Mass. 352, 185 N. E. 44. Compare the rule in equity, New England Oil Refining Co. v. Canada Mexico Oil Co., Ltd., 274 Mass. 191, 198, 174 N. E. 330. The allegation, that the defendant is doing business in a certain name, amounts to an allegation that contracts made by her in that name bind her and merely forecasts proof that could be made without the allegation.
The declaration is upon a written instrument by which the plaintiff ‘doth hereby Demise and Lease’ to the defendant ‘the roof of the building numbered 1-3 on Chelsea Street in East Boston * * * for the term of Five years' beginning January 1, 1931, at a rental payable in semi-annual payments of $75 each, beginning January 2, 1931. The evident intention was that the defendant should use the roof for advertising purposes. Since the signing of the instrument the defendant has removed structures which she had on the roof under an earlier use or occupancy, and has not again used the roof. But there was no evidence of surrender, or eviction, or repudiation of the contract on either side. Nothing has been paid by the defendant under the instrument. This action was begun on April 4, 1932, to recover three semi-annual payments of $75 each, with interest. The trial judge found for the plaintiff for the amount claimed in the declaration, denying several requests for rulings presented by the defendant. The appellate division dismissed a report, and the defendant appealed to this court.
The instrument bore no seal, but declared that the parties ‘have hereunto set their hands and seals,’ and consequently was in form a sealed instrument under St. 1929, c. 377, § 2, St. 1931, c. 426, § 128 (G. L. [Ter. Ed.] c. 4, § 9A). The signature which is alleged to be that of the defendant reads: ‘(John Donnelly & Sons) By I. J. Kennedy R. H. Hager Operating Department Real Estate Division.’ It is conceded that the defendant was doing business under the name John Donnelly & Sons, and consequently the signing of that name had the effect of a signature in the name of the defendant. There was evidence that the agents who affixed that signature for the defendant had authority to do so, but there was no evidence that such authority had been given under seal.
The defendant relies upon the ancient but still vital principle that authority to sign a sealed instrument must be given under seal. Bretta v. Meltzer, 280 Mass. 573, 576, 182 N. E. 827, and cases cited; Williston, Contracts, § 275; American Law Institute, Restatement of the Law of Agency (1933) § 28. One of the recognized exceptions to that principle is, that unsealed authority suffices for the execution in the name of the principal of an instrument which the law does not require to be sealed, although in fact it is sealed. Tapley v. Butterfield, 1 Metc. 515,35 Am. Dec. 374;Milton v. Mosher, 7 Metc. 244;Sherman v. Fitch, 98 Mass. 59, 63, 64;Blanchard v. Blackstone, 102 Mass. 343, 347. See also Seretto v. Schell, 247 Mass. 173, 141 N. E. 871;Gross v. Cohen, 236 Mass. 468, 128 N. E. 714. ‘In such a case there is no sealed instrument since the seal cannot be regarded as that of the principal, yet the document shows an intent to contract on the part of the principal through an agent authorized to express such intent, though not authorized to covenant under seal.’ Williston, Contracts, § 275. A lease of real estate for not more than seven years from the making thereof does...
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