City of Boston v. Robbins

• Citation: 126 Mass. 384
• Parties: City of Boston v. Nathan Robbins
• Decision Date: 03 March 1879
• Court: United States State Supreme Judicial Court of Massachusetts

126 Mass. 384

City of Boston v. Nathan Robbins

Supreme Court of Massachusetts

March 3, 1879

Argued November 14, 1878 [Syllabus Material]

Suffolk. Writ of Review to revise a judgment recovered by the defendant in review against the plaintiff in review. After the former decision, reported 121 Mass. 453, the case was tried in the Superior Court, without a jury, before Colburn J., who allowed a bill of exceptions in substance as follows:

The original action was brought by Nathan Robbins, trustee, after a demand and refusal to pay, to recover from the plaintiff in review the sum of $ 8889, being the sum awarded by the board of aldermen to Franklin S. Simonds, Jonathan B. Simonds and George W. Simonds, trustees under the will of Jonathan Simonds, for a portion of their land taken on November 15 1869, for the purpose of widening Eliot Street.

The order of the board of aldermen taking the land contained an estimate of damages, in which the "value of land taken" was estimated at $ 5089, the "damages to building, owners and occupants" at $ 3800, and the entire damages at $ 8889.

At the time of the taking and award, Franklin S. Simonds had died, and the whole estate was owned by Jonathan B. Simonds and George W. Simonds, as surviving trustees, and was subject to a lease executed by the three trustees on December 2, 1854, to Charles W. Rosenfeld, for the term of eighteen years from January 1, 1855. By the terms of the lease, the lessee was to have the right to take down the buildings then on the land and to erect new ones. He was also to make repairs, and to give up the premises at the end of the term in good repair; to keep the buildings insured against loss by fire; and to pay the rent quarterly, and all "taxes and duties" levied during the term. On May 31, 1856, this lease was assigned, for the residue of the term, to Job A. Turner and Joel Snow, copartners, they agreeing, by an instrument of even date, to make certain repairs and improvements on the premises, to be paid for by Rosenfeld, and to reassign the lease, which was described and referred to, when such payment was made in full.

At the time of the taking by the city, the premises were occupied by different tenants, who held as tenants at will under Turner and Snow. After the taking, the assignees, with the knowledge and assent of George W. Simonds, repaired the building on the estate, which had been cut off in the widening, at an expense of $ 2000. After the city passed the order of taking, the tenants at will moved out, and the premises were vacant, until restored after the widening. The assignees of the lease were deprived of the use of the premises for a considerable time, and suffered damages thereby.

On July 2, 1870, Joel Snow assigned his interest under the lease, and his claim against the city, to Reuben S. Wade. On January 21, 1871, George W. Simonds and Job A. Turner entered into an arbitration to determine what parts of the sum awarded by the city should be paid to the owners of the land, and to the lessees. The arbitrators, on February 10, 1871, awarded the sum of $ 3200 to the lessees. On March 20, 1871, the city passed an order that this sum should be paid to Turner; and it was so paid, he, with Wade as surety, giving a bond of indemnity to the city.

Wade had knowledge of the arbitration and award, and assented verbally to the same. About $ 2000 of the money received from the city was spent in repairing and restoring the building to make it fit for use after the widening, and the balance was equally divided between Turner and Wade. After the assignment of the lease, Jonathan B. Simonds, as trustee, collected the rent up to about 1860; and after that George W. Simonds collected it, and the assignees dealt exclusively with him in regard to the estate up to the time of the arbitration; and the money was paid to Turner and Wade with his knowledge and consent. In making the agreement of arbitration Jonathan B. Simonds took no part, he did not know of or consent to the same, and was not consulted in reference thereto.

On November 9, 1871, George W. Simonds was dead, and Jonathan B Simonds, who was the sole surviving trustee, filed a petition to the Probate Court, under the Gen. Sts. c. 43, §§ 17, 18, setting forth the taking of a part of the estate by the city; that Turner was a tenant of the estate at the time of the widening; that no other persons were interested therein; that the petitioner and Turner could not agree as to a division of the damages awarded; that the petitioner had applied to Turner to agree...