Brisay v. Foss

• Decision Date: 12 June 1928
• Citation: 162 N.E. 4,264 Mass. 102
• Parties: DES BRISAY et al. v. FOSS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

264 Mass. 102

162 N.E. 4

DES BRISAY et al.

v.FOSS.

Supreme Judicial Court of Massachusetts, Suffolk.

June 12, 1928.

Exceptions from Superior Court, Suffolk County; James H. Sisk, Judge.

Action by Lucy I. Des Brisay and others against Eugene N. Foss. Verdict for defendant, and plaintiff brings exceptions. Exceptions overruled.W. R. Bigelow, of Boston, for plaintiffs.

L. A. Mayberry and R. Gallagher, both of Boston, for defendant.

WAIT, J.

The plaintiffs sue in contract or tort.

The count in contract alleges breach of a promise either to remodel certain premises on Charlesgate East in Boston so as to fit them for use as a hospital, or to erect a modern hospital building in their stead and to lease or secure leases for a term of twenty years, or to lease the remodelled or newly erected buildings to a corporation to be formed by the plaintiffs. The count in tort alleges a false representation that the title to the property was good, when, in truth, it was so encumbered by restrictions that the premises could not be occupied for a hospital.

[1] The counts, necessarily, are for a single cause of action; otherwise they could not be joined in a single action at law. The recovery actually sought is for all loss to the plaintiffs resulting from action which they took in consequence of the representation, and of the promised performance of the defendant's undertaking. The answer pleaded a general denial and the statute of frauds.

[2][3] The plaintiffs filed a replication, setting out, in substance as stated in the counts of the declaration, the circumstances surrounding them when the alleged contract was made, as well as the action taken by them in reliance upon it, and claiming that the defendant was thereby estopped to set up the statute of frauds as a defense; and that, in equity, the plaintiffs were entitled to be absolutely and unconditionaly relieved against such defense. On Motion this was stricken from the files. A bill of exceptions presents the propriety of this ruling for determination.

There was no error in the ruling. No new facts were set up in the answer. No replication was necessary. The facts alleged in the replication afford as full relief at law as they would in equity and, therefore, G. L. c. 231, § 35, which authorizes a replication setting up an equitable defence, is not applicable. Comstock v. Livingston, 210 Mass. 581, 97 N. E. 106. Moreover, the plaintiffs at the trial had such benefit as the facts alleged furnish. They were not prejudiced.

A second bill of exceptions to rulings made at the trial to a jury is also before us. At the trial there was evidence that the plaintiffs, who as partners had carried on a successful private hospital in leased premises on Newbury street in Boston and whose leases would expire on August 1 and 31 of 1922, understood that they could renew their leases if they so notified the landlords before July, 1922; but they desired to secure larger and more modern accommodations. In searching for suitable premises, some time in August of 1921, they applied to real estate brokers who eventually introduced them to the defendant, the controlling owner of premises of the Suburban Realty Corporation on Charlesgate East and Beacon street in Boston. The buildings, as they stood, were not suitable for hospital uses. It was proposed that the defendant remodel them or build a modern hospital building on the land, and that the plaintiffs form a corporation to take over their existing business, to lease or purchase the land with the new or remodelled structure, and there to carry on a private hospital. Plans for buildings were proposed and discussed and efforts were made to interest others in a hospital trust for financing the business; but no remodelling or construction was entered upon by the defendant in spite of urging by the plaintiffs. In February of 1922 the plaintiffs organized ‘Des Brisay Hospital, Inc.,’ a corporation under the laws of the commonwealth, to own or lease and to carry on the hospital contemplated. They stated to the brokers that the location was satisfactory and they were willing to consider securing it, but that they must be sure they could have the property secured for their use and the buildings put up without expense to them, as they must notify their present landlords whether they would renew their leases. They asked whether the title were good and were told that it had been recently examined and was good—that it would be to waste time and money to have it re-examined. In reliance on these statements they made no investigation thereof. They notified the landlord at Newbury street that they would not renew the existing leases, and, under date of February 22, 1922, new leases were made to another tenant to take effect from and after August 1, 1922. The existing leases contained no covenants for renewal. Such right as the plaintiffs had to renew, if any, rested upon oral promises. Rent had not always been paid promptly, and arrears existed at the time of the early negotiation with the defendant.

In April, May or June of 1922, the plaintiffs were informed that the title to the Charlesgate premises was encumbered by restrictions and that the land could not be used for hospital purposes. Considerable time and effort was expended by the plaintiffs in endeavors to secure the release of the restrictions but without success. The defendant offered for the plaintiffs' consideration other property in which he was interested situated upon Audubon road. Other plans for hospital buildings on those premises were prepared and renewed efforts to finance the business were made, but without suecessful result. About July of 1922, with the defendant's consent, the plaintiffs removed their property to the premises on Charlesgate East, where they remained without payment of rent until negotiations were abandoned. On February 12, 1923, they transferred to the corporation all personal property theretofore used in their hospital business with all the good will of their partnership and the right to use the name ‘Des Brisay Hospital.’ In April of 1923 they notified the brokers that they would ‘call it quits' and would not wait longer, and removed their goods to Corey Hill in Brookline where they planned to carry on a hospital; but, upon notice of a purposed change in a zoning ordinance prohibiting such use of the premises, they abandoned their purpose. Since August of 1922, the plaintiffs had done no business in conducting a hospital. In May, 1923, the Suburban Realty Corporation soid the premises on Charlesgate East. The defendant denied making the promises alleged. No agreement in writing was made by the parties and no memorandum in writing was put in evidence, unless it be that a certain letter of the real estate agents to the plaintiff Morse with an enclosed draft for a prospectus to be issued to obtain financial support for the hospital constitutes such a memorandum.

[4] A memorandum to satisfy the statute of frauds need not be a formal document intended to serve as a memorandum of...