Brown v. Cowell

• Decision Date: 05 January 1875
• Citation: 116 Mass. 461
• Parties: Sarah W. Brown v. William W. Cowell
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

116 Mass. 461

Sarah W. Brown v. William W. Cowell

Supreme Court of Massachusetts

January 5, 1875

Argued September 30, 1874 [Syllabus Material]

Worcester. Contract for breach of an agreement to sell certain land for the plaintiff and return the proceeds to her. There was also a count for money had and received.

At the trial in the Superior Court, before Allen J., the plaintiff testified that she conveyed the land in question to the defendant, she having a life estate therein, by a deed of quitclaim on February 14, 1871; and that no paper in writing in relation to said land was ever delivered to her, or to any person for her, by the defendant. She was also allowed to testify, against the defendant's objection, that before and at the time of the delivery of the deed to the defendant he told her that he would sell the land for her, and return the proceeds to her, to the extent of her interest in it.

The defendant put in evidence tending to prove that at the time the deed was delivered, he was the guardian of a minor who owned one undivided half of the fee in the land, and that he executed a bond, whereby he agreed to sell the land and pay the plaintiff and the owner of the fee of the other undivided half their respective proportions; that he and the plaintiff agreed that the bond should be deposited with James E Pollard as the property of the plaintiff and the grantors in the deed and obligees in the bond, and that it was so deposited soon after in accordance with the agreement.

The defendant also offered evidence tending to show that a few weeks after the deed was executed he sold the interest of all the parties in the estate for $ 1200; that after he had made the bargain, but before the deeds had been passed and before he had obtained leave from the court to sell the interest of his ward, the plaintiff knowing that the bargain had been made for $ 1200, one half to be paid when the title should be made good and leave to sell the minor's interest obtained, the remainder to be secured by mortgage payable in one year from that time, consented to its being sold for that price and on those conditions, and expressed herself satisfied therewith, and asked the defendant what he, the defendant, would give for her interest in the property and pay her the money then; that the defendant told her she had better wait till he got the pay for the property as she would get more out of it than he would then give; that she insisted that the defendant should make an offer, which he did; that the plaintiff then asked him if that was the best he would do, to which he replied he would give $ 23 more, making in all his second offer $ 323; that she then told him she would accept his proposition; that he told her he had not the ready money, but could get it from Benjamin Cowell, who lived a few miles distant, and he would like to have the bond assigned to said Cowell as security for the money, and he would get the money that night, if the plaintiff would go with him to said Cowell, who lived a few miles distant; that he, in the presence of the plaintiff, wrote an assignment of the bond to said Cowell, and immediately thereafter she said she would rather take the defendant's note than go to Cowell's, and the defendant at once gave his note for the amount, and at the same time the assignment was delivered to the defendant by the plaintiff; that the plaintiff was about fifty years of age and of usual intelligence.

The defendant also offered evidence tending to show that at the time this suit was commenced the deed had been given and mortgage taken to which the plaintiff had assented, but that the defendant had received only $ 600 on account of the sale, the mortgage being then unpaid and not due. There was evidence tending to show that the defendant had received $ 600 in cash at the time of the sale, and a note dated June 1, 1871, for $ 600, payable in one year; that said note was indorsed by the defendant and the money obtained on it by him from a bank in June, 1871.

The defendant asked the judge to instruct the jury as follows "1. That if the defendant at the time the deed was executed delivered to her, or, for her, to some one else, the bond produced by him; and subsequently the plaintiff, with a full knowledge of all the facts and by a clear and distinct contract sold to the defendant all her interest in the bond for a consideration by an instrument under seal, and it was assigned to Benjamin Cowell at the defendant's request in trust for him, and at the time of delivery the plaintiff knew it was for the benefit of the defendant, and it was delivered to the defendant, and no advantage was taken by the defendant of any information he had either as trustee or otherwise, and no influence was exerted by the plaintiff over the defendant, the plaintiff cannot recover. 2. That if...