Boudrot v. Cole
| Decision Date | 16 February 1934 |
| Citation | 189 N.E. 59,285 Mass. 353 |
| Parties | BOUDROT v. COLE et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Suffolk County; Keating, Judge.
Bill by Lillian A. Boudrot who, on her death, was substituted by William A. Boudrot, her executor, against Eleonore Ormance Cole and another, wherein defendants counterclaimed. From a final decree, named defendant appeals.
Affirmed.
J. J. Butler, of Boston, for appellant Eleonore Ormance Cole.
G. H. McDermott, of Boston, for appellee.
The defendant Eleonore Ormance Cole, wife of the other defendant Frank A. Cole, is a niece of the original plaintiff, Lillian A. Boudrot. Expecting to die within a few months, the original plaintiff went to live with the defendants, and Mrs. Cole orally agreed to care for the original plaintiff during her life. As part of the consideration, the original plaintiff on June 23, 1932, executed a transfer of twenty-five shares of stock of United Shoe Machinery Corporation and eight shares of stock of Southern California Edison Company to the defendant Eleonore Ormance Cole, and directed one William A. Boudrot, a brother of the original plaintiff, to have the shares transferred into the name of Mrs. Cole but to retain the new certificates until the original plaintiff should die and then to deliver them to Mrs. Cole if she should have performed her agreement to take good care of the original plaintiff during her life. The defendant Eleonore Ormance Cole, in violation of the agreement, obtained delivery of the new certificates from the transfer agent, and the original plaintiff did not demand them from her immediately upon learning the fact, but did so a few days later when on July 31, 1932, she moved away from the household of Mrs. Cole because of the failure of Mrs. Cole to furnish proper care. Shortly afterwards Mrs. Cole sold the eight shares of stock of Southern California Edison Company for $195. On August 20, 1932, the original plaintiff, in apparent ignorance of the fact that some of the stock had been sold, brought this bill for redelivery and retransfer of the stock of both corporations, alleging a contract to care for her on the part of both defendants and fraud on the part of both in that they never intended to perform the contract.
No contract on the part of the defendant Frank A. Cole, and no such fraud on the part of either defendant, was found. By way of counterclaim under rule 32 of the Superior Court (1932) the defendants set up that William A. Boudrot, at the time of the execution of the transfer of stock to Mrs. Cole, received from the original plaintiff a transfer of other shares to him, which he held in trust for Mrs. Cole, and prayed that William A. Boudrot be made a party and be ordered to transfer said other shares to Mrs. Cole. William A. Boudrot appeared and answered, claiming title to said other shares. On January 1, 1933, the original plaintiff died, and said William A. Boudrot as executor of her will was admitted as plaintiff to prosecute this bill. A master found the foregoing facts in substance except those alleged in the counterclaim. Exceptions to his report were overruled, and his report was confirmed.
A final decree was entered, dismissing the bill as against the defendant Frank A. Cole; ordering the defendant Eleonore Ormance Cole to transfer to the plaintiff executor the twenty-five shares of stock of United Shoe Machinery...
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