O'Conner v. Hurley

• Decision Date: 07 May 1888
• Citation: 16 N.E. 764,147 Mass. 145
• Parties: O'CONNER v. HURLEY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

147 Mass. 145

16 N.E. 764

O'CONNER v. HURLEY et al.

Supreme Judicial Court of Massachusetts, Norfolk.

May 7, 1888

COUNSEL

Perkins & Lyman, for defendants.

The daughters were not parties to the bargain, and are therefore not liable upon the express contract made between the plaintiff and Margaret Hurley, widow. Nothing is better settled than that possession or use will not sustain an implied assumpsit without privity of contract. Hills v Snell, 104 Mass. 177; Ice Co. v. Potter, 123 Mass. 28; Cook v. Doggett, 2 Allen, 439; Tripp v. Hathaway, 15 Pick. 47; Stone v. Crocker, 19 Pick. 292; Anderson v. Fuller, 18 Pick. 572; Kemble v. Dresser, 1 Metc. 271; Hathaway v Winneshiek Co., 30 Iowa, 596. This was a voluntary service rendered without any request from the daughters, and no recovery can be had against them. Bowman v. Blodgett 2 Metc. 308; Roxbury v. Corporation, 2 Pick. 40; Scituate v. Hanover, 9 Gray, 420; Andrews v. Callender, 13 Pick. 484. "Their knowledge of the progress of the work charged them with no responsibility," (Hayes v. Fessenden, 106 Mass. 230,) "and no legal presumption of their liability arises from their ownership." Tripp v. Hathaway, 15 Pick. 47. The daughters have received no benefit from the building of the house. It was built on their land by a mistake, and they have acquired no title to it. Under the decisions the house is the personal property of the mother, who has the right to enter and remove it at any time. Oakman v. Insurance Co., 98 Mass. 58; Belding v. Cushing, 1 Gray, 578; Curtis v. Riddle, 7 Allen, 187; Howard v. Fessenden, 14 Allen, 128; Poor v. Oakman, 104 Mass. 318; Hayes v. Fessenden, 106 Mass. 230; Korbe v. Barbour, 130 Mass. 255. But no implied contract can arise because of the existence of the express contract with the mother. "The law will not imply a contract where an express one is proved." Draper v. Randolph, 4 Har. (Del.) 454; 1 Chit.Cont. (11th Amer.Ed.) 89, and authorities cited in note; Hospital v. Fairbanks, 129 Mass. 78-81. The finding that the note of the mother, under the circumstances, was not a payment, was a finding which, "as a matter of law, could not properly have been made." Murray v. Riley, 140 Mass. 492, 6 N.E. 512. The facts stated "do not warrant the conclusion arrived at by the judge." Backus v. Chapman, 111 Mass. 387. But the defendant Margaret Hurley, widow, is not liable in assumpsit. All the negotiations were merged in the written contract contained in the mortgage. This mortgage was made in good faith, and the mortgagor is not responsible for the goodness of the title beyond the extent of the covenants in the mortgage. Assumpsit will not lie. 1 Sugd.Vend. (Perk.Ed.) p. 383, § 26, note x; p. 496, note y; vol. 2, pp. 193, 194, and note; Rawle, Cov. (5th Ed.) § 322, note, p. 541, § 326; 2 Kent, Comm. (12th Ed.) 473; 2 Add.Cont. (Abbott's Notes,) *908; Earle v. De Witt, 6 Allen, 520, 526, 528; Tucker v. White, 125 Mass. 344, 346; Rand v. Webber, 64 Me. 191, 193; Miller v. Watson, 5 Cow. 195. Margaret Hurley, widow, the mortgagor, can be made to respond in damages on the covenants in her mortgage. Again, no action in assumpsit can be maintained until after the express contract with the mother is rescinded. The plaintiff has made no effectual attempt to rescind. He has retained the interest on the note and the proceeds of the foreclosure sale. The contract must be nullified in toto, or not at all. Perley v. Balch, 23 Pick. 283, 286; Snow v. Alley, 144 Mass. 551, 555, 11 N.E. 764. If there can be a recission in this case, and whether or not the plaintiff attempted to rescind within a reasonable time, is a question of law for the court. Bassett v. Brown, 105 Mass. 551, 557. It is believed that as a condition precedent to maintaining this action the plaintiff should "first reconvey, or offer to convey, back the title to the grantor. Croft v. Wilbar, 7 Allen, 249. In the case at bar the note and mortgage were not "absolutely worthless." See Estabrook v. Swett, 116 Mass. 303, 304. It is the partial failure of the title acquired by the mortgagee that has led to this action of assumpsit. But if a breach of the covenant has occurred effecting part only of the title, then "Morris v. Phelps, 5 Johns. 49, 54, is a distinct authority that the purchaser has no option to rescind, and in the recent case of Hayes v. Ferguson, 15 Lea, 1, the law was held the same way." Rawle, Cov. (5th Ed.) § 185, note 3; Id. § 187, p. 268; Clementson v. Streeter, 59 Wis. 429, 432, 18 N.W. 341; Leggett v. McCarty, 3 Edw.Ch. 124; Woodruff v. Bunce, 9 Paige, 443. It is believed that the finding for the plaintiff was made under the belief that he was remediless if this action could not be maintained, but this is not true. As against the mother an action on the covenant is open to him, and against the daughters, if the house belongs to him, equity will allow him to remove it. Baptiste v. Peters, 51 Ala. 158; McKelway v. Armour, 10 N.J.Eq. 115; Allen v. Hammond, 11 Pet. 63, 71.

Chas. H. Drew, for plaintiff.

There was an express contract that the plaintiff should be paid for the house erected by him. It was distinctly agreed by all concerned that he should build the house and be paid for it, and have a mortgage on the house and lands as security. The case, therefore, differs from those cases where services had been rendered and money expended by one voluntarily, and without any request from the person benefited thereby, such as Frear v. Hardenbergh, 5 Johns. 273, and Bartholomew v. Jackson, 20 Johns. 28, in which the court held that the persons rendering the service or expending the money could not recover. Even if there were no express promise, yet, under the circumstances, there was an implied promise by all the defendants. They all knew of the proposed erection of the house, and were pleased with it; they knew of the promise to pay the plaintiff therefor, and assented to it. The case falls within the elementary principle thus laid down in 2 Add.Cont. (Abb.Amer.Ed.) 586; 1 Add.Cont. 25; 1 Pars.Cont. 446; Fishmonger's Co. v. Robertson, 5 Man. & G. 192; Abbot v. Hermon, 7 Greenl. 118. See, also, Roberts v. Marston, 20 Me. 275; Hayden v. Madison, 7 Greenl. 76; Weston v. Davis, 24 Me. 374; Hatch v. Purcell, 1 Fost. (NH) 544; Day v. Caton, 119 Mass. 516; Wells v. Banister, 4 Mass. 514. The question, however, whether there was any contract between the plaintiff and defendant was one of fact, and was found by the court in the plaintiff's favor, that being involved, as a matter of course, in the finding for the plaintiff. Day v. Caton, 119 Mass. 516. See, also, Baker v. Keen, 2 Starkie, 501; Hicks v. Burhans, 10 Johns. 243. As the terms of the contract between the parties were that the plaintiff should erect the house at the cost of the owner, and receive as security therefor a mortgage on the whole estate, it follows that the note and mortgage, not being in accordance with the contract, were not taken as payment, and their acceptance, therefore, did not cancel the indebtedness. Melledge v. Iron Co., 5 Cush. 170. See, also, Ely v. James, 123 Mass. 36; Green v. Russell, 132 Mass. 536; Burdick v. Green, 15 Johns. 247; Hughes v. Wheeler, 8 Cow. 77.

OPINION

DEVENS J.

The ground upon which the plaintiff seeks to establish his position that a contract should be implied on the part of the defendants other than Mrs. Margaret Hurley (being her daughters) to pay to him the cost of the dwelling-house which he erected upon their land, in which Margaret Hurley had a dower interest only, is that they knew that the plaintiff had made an express contract with Margaret to build a house thereon, that they not only did not object thereto, but being aware of the fact, expressed themselves pleased therewith, as they were desirous that their mother should have a home, and made some suggestions in regard to the building. It appears that at this time all parties believed the land the sole property of Margaret Hurley, and that the agreement was between her alone and the plaintiff; that he would build the house, if he could have it and the land as security; and that she subsequently mortgaged the same to him as security for the note given by her to him for his outlay. It is found that the "plaintiff and the defendant's daughters did not intend to make, and did not understand they had made, any contract with each other, because all parties supposed that the mother owned the property," and all that the plaintiff did was done with that understanding up to the time of completing the contract and of taking the mortgage. As the house was a suitable one, and added to the value of the property to the amount which had been expended in its erection, the plaintiff now contends that the defendant's daughters are liable, as valuable services have been rendered on their land, of which they may avail themselves in their use of it, and that they should be held responsible for the payment therefor. If these defendants had known that this land was their property; that an expensive structure was being erected thereon; and that the builder expected that they would pay therefor, there would be, undoubtedly, evidence from which a contract so to do might be implied. Day v. Caton, 119 Mass. 516. When they had no knowledge that the land was theirs, and when they knew that another, whom they supposed to be the owner, had expressly agreed to pay therefor, no such inference can be made. They assented merely that the owner of the land should do what she desired with her own property, and were pleased and interested because the supposed owner was their mother. Hills v. Snell, 104 Mass. 177; Hayes v. Fessenden, 106 Mass. 230. One cannot, merely by erecting a house on the land of another, compel him to pay for it, even if the land is benefited by the erection...