Cook v. Cook

• Decision Date: 31 December 1935
• Citation: 199 N.E. 333,293 Mass. 29
• Parties: COOK v. COOK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

293 Mass. 29

199 N.E. 333

COOK v. COOK.

Supreme Judicial Court of Massachusetts, Worcester.

December 31, 1935

Exceptions from Superior Court, Worcester County; Williams Judge.

Action of contract by Hiram L. Cook against John E. Cook, executor. Judgment in Superior Court for defendant, and plaintiff saves exceptions.

Exceptions overruled.

C. E. Tupper, of Worcester, for plaintiff.

M. A. Moore, of Gardner, for defendant.

LUMMUS, Justice.

Edward O. Cook, the defendant's testator, as early as 1881 was tenant in common with his brother Hiram L. Cook, the plaintiff, of a farm in Winchendon which descended from their father Martin Cook. It had been the farm of his father John Cook, had passed into different ownerships, and had been reunited in the ownership of Martin Cook by two deeds of which the later was the deed in 1856 of the Foster lot, hereinafter mentioned. Edward O. Cook did not live in Winchendon, and the plaintiff looked after the farm.

On May 12, 1933, the plaintiff brought this action of contract upon an account annexed containing seventy-eight items, exclusive of interest, beginning in 1881. In general these items were for labor performed and money paid for the defendant's testator with respect to the farm. Item 83, added by amendment was for services which, the auditor found, ended in 1922. By agreement, and the terms of the reference, his findings of fact were final. The most recent item of charge, with one exception, is item 67, for paying taxes for the defendant's testator in 1922. That exception is item 74, for timber cut in 1927 and 1928 by the defendant's testator on the Foster lot, which the plaintiff contends remained in common ownership. Items 68 to 73 inclusive, and 75 to 78 inclusive, are credits given by the plaintiff to the defendant's testator, principally for taxes paid by the defendant's testator from 1923 to 1931 on the same Foster lot.

Obviously, item 67 and the earlier items of the account, if they stood alone, would be barred by the statute of limitations (G.L. [Ter.Ed.] c. 260, § 2). The plaintiff seeks to use the later items, 68 to 78 inclusive, to preserve the whole account, on the theory that the account is a ‘ mutual and open account current.’ G.L. (Ter.Ed.) c. 260, § 6. We assume, without deciding, that the account is of that nature. Howland v. Stowe (Mass.) 194 N.E. 888; Markiewicz v. Toton (Mass.) 198 N.E. 659. Unless these later items are rightly charged or credited, the earlier items are not preserved, and the plaintiff cannot recover. The defendant contends that the Foster lot, to which the later items relate, was included in the deed of a commissioner given under a decree for partition in the Probate Court and a confirmatory deed given by the plaintiff himself, whereby in 1923 the farm theretofore held in common became vested in the defendant's testator alone. If so, the later items in the account have no foundation, and cannot save the earlier items.

The decisive question is, therefore, whether the deeds given in 1923 conveyed the Foster lot to the defendant's testator. The commissioner's warrant and deed contained the following general description of the whole tract and the following specific boundaries of the first parcel within which the Foster lot was included if it passed at all ‘ That certain tract of land with the buildings thereon which lies North of the old county road leading from Ashburnham to Winchendon, known as the John Cook farm, comprising one hundred thirty (130) acres, more or less, lying on both sides of the Cheshire Branch of the Boston and Maine Railroad and described in two parcels as follows: First. Bounded on the West by land now or formerly of Joseph Whitney, on the North by land of the Boston and Maine Railroad, on the East by land now or formerly of Beals and Dwinnel, and on the South by land now or formerly of Reuben...