Cavanaugh Bros. Horse Co. v. Gaston

• Decision Date: 01 June 1926
• Citation: 255 Mass. 587,152 N.E. 623
• Parties: CAVANAUGH BROS. HORSE CO. v. GASTON at al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

255 Mass. 587

152 N.E. 623

CAVANAUGH BROS. HORSE CO.

v.GASTON at al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 1, 1926.

Exceptions from Superior Court, Suffolk County; W. P. Hall, Judge.

Action by Cavanaugh Bros. Horse Company against William A. Gaston and another, executors of the will of Henry P. Nawn, deceased. On plaintiff's exceptions after directed verdict for defendants. Exceptions overruled.

Defendants introduced testimony of several witnesses to the effect that their decedent had, on different occasions, denied any debt to plaintiff or its assignors, and testimony of witnesses who did his bookkeeping and were familiar with his financial affairs to the effect that he never mentioned having signed any written acknowledgment of indebtedness.F. J. Smith, of Taunton, for plaintiff.

E. C. Thayer and Edward Bangs, both of Boston, for defendants.

WAIT, J.

The plaintiff declared, in contract, that it and Henry P. Nawn accounted together on November 1, 1918; that a balance of $3,913.08 was found due from Nawn which he agreed to pay but never paid. The defendants, in addition to general denial and payment, pleaded the statute of frauds and the statute of limitations. The case was referred to an auditor who reported findings of fact upon which, unless the statutes of frauds and of limitations constituted a defense, the defendants, as executors of Henry P. Nawn, would be liable. At the trial before a jury, the plaintiff put in the report of the auditor and rested. All other evidence was introduced by the defendants. The judge refused to instruct the jury in accord with requests of the plaintiff, refused to order a verdict in accord with the auditor's report for the plaintiff, and submitted to the jury two issues of fact upon a charge confined to those issues. The jury found upon the first of these issues that Henry P. Nawn did not sign the originals of certain exhibits. This made a finding upon the second issue unnecessary. Thereupon the judge ordered and the jury returned a verdict for the defendants. The plaintiff saved exceptions to these refusals and order. There was evidence that in 1900 one John J. Nawn, a cousin of the deceased Henry P. Nawn, was indebted to a partnership, Cavanaugh Brothers, in the amount claimed in the declaration. He also was in debt to Henry P. Nawn, and owed the Shawmut National Bank $5,100 on a note endorsed by Henry Nawn and Cavanaugh Brothers. Under date of February 7, 1900, he deeded certain pieces of real estate to Henry P. Nawn who, as a condition of the delivery of the deeds to himself, executed a declaration of trust under seal which declared that the conveyances were made to him ‘to sell and turn into cash, and pay up all the debts of John J. Nawn to whomsoever owed, including especially a loan of $5,100, to the National Shawmut Bank, upon which Cavanaugh Brothers and I are liable, and debts due me and said Cavanaugh Brothers' and concluded as follows: ‘I hereby promise, covenant and agree to and with the said John J. Nawn that I will turn over to the said John J. Nawn, or his wife, any net proceeds from the property over and above what I may use to pay said debts, or any other debts owed by said John J. Nawn or wife, after deducting reasonable costs and expenses.’ This instrument was kept by one of the Cavanaugh brothers. Under date of December 22, 1903, Henry Nawn reconveyed the premises (except one parcel lost by a foreclosure of a mortgage to which it was subject when received by Henry Nawn) to John J. Nawn, and received two mortgages, one for $4,500, and one for $5993.25, on the separate parcels, both of which bore interest at six per cent. and were for the term of one year. The deeds of conveyance to Henry Nawn were recorded February 25, 1901, while the reconveyance and mortgages were recorded January 15, 1904. Cavanaugh Brothers did not know of the reconveyance and mortgages till 1915. In 1916 Cavanaugh Brothers organized the plaintiff corporation, and assigned to it the firm's outstanding accounts on January 25, 1916. Some time before September, 1918, the declaration of trust, which had been lost for years and whose existence at any time had been denied by Henry Nawn, was found; and on September 24, 1918, it was taken to him with a statement from the books of Cavanaugh Brothers of the account against John J. Nawn and shown to him. He is said then to have acknowledged the signature and promised to pay the account. On November 1, 1918, one of the Cavanaugh brothers, then an officer of the plaintiff corporation, went to Henry Nawn at his home, taking with him a transcript of the accounts against John J. Nawn (the original of Exhibits 1, 2 and 3 at the trial) which showed at the bottom a balance due of $3913.08, and the declaration of trust. On this occasion there was written at the foot of the account under the balance: ‘I will pay this account. H. P. Nawn, Witness M. A. Cavanaugh’; all but the signature being in the handwriting of Cavanaugh.

December 16, 1919, Henry Nawn assigned the mortgage for...