Curley v. Curley

• Decision Date: 25 February 1942
• Citation: 40 N.E.2d 272,311 Mass. 61
• Parties: CURLEY v. CURLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

311 Mass. 61

40 N.E.2d 272

CURLEY

v.CURLEY.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 25, 1942.

Exceptions from Superior Court, Middlesex County; Goldberg, Judge.

Action of contract by Margaret D. Curley, executrix, against William T. Curley, to recover money allegedy due from the defendant in the settlement of the decedent's interest in a partnership existing between the defendant and the decedent. Verdict for the plaintiff, and the defendant brings exceptions.

Exceptions sustained and judgment for the defendant.

Before FIELD, C. J., and DONAHUE, DOLAN, and COX, JJ.

J. B. Abrams and M. Palais, both of Boston, for plaintiff.

F. A. Thayer, of Boston, for defendant.

DOLAN, Justice.

This is an action of contract in which the plaintiff as she is executrix of the will of Leo P. Curley seeks to recover the sum of $1,643.26 from the defendant, alleged to be due from him in settlement of the interest of the testator in a partnership existing between the defendant and him at the time of the latter's death, as set forth in an account stated, upon which the first count of the declaration is based. The second count of the declaration is for money had and received in the same amount. The writ is dated September 6, 1940. The case was tried to a jury and at the close of the evidence the defendant's motion for a directed verdict was denied subject to his exception. Certain of the defendant's requests for instructions to the jury were refused by the judge, subject to the defendant's exceptions. The jury returned a verdict for the plaintiff in the amount above set forth.

The evidence most favorable to the plaintiff would have warranted the jury in finding the following facts. For many years the testator and the defendant, his brother, conducted a coal business as equal partners under the name of Curley Brothers. Upon the death of the testator in 1935, the plaintiff was duly appointed and qualified as executrix of his will. A controversy having arisen between the plaintiff and the defendant in connection with the settlement of the partnership account, the plaintiff filed a petition in the Probate Court for Middlesex County on November 4, 1936, for an accounting by the defendant and determination of the interest of the testator in the partnership. Pending that proceeding negotiations were had between the parties and their counsel looking toward a settlement. As a result the parties agreed upon a settlement under which the defendant promised to pay to the plaintiff $42,250 in satisfaction of all claims against the defendant. The defendant paid the plaintiff $9,606.74 by check dated June 21, 1937, and gave her a note for $31,000, payable $3,000 annually with interest at the rate of three per cent per annum.

There was evidence that the balance of $1,643.26 here sought to be recovered remained unpaid, but subject to be paid by the defendant to the plaintiff, if the former failed to submit evidence to the latter to show that the testator had collected that sum for the partnership and had not accounted for it. The defendant testified that he had not paid this balance to the plaintiff, and that it was in fact collected by the testator for the partnership and had not been paid in by him. The evidence, however, would warrant the jury infinding that this had not been established by the defendant.

On the date of the settlement (June 21, 1937) the plaintiff executed a release whereby, in consideration of one dollar and other valuable consideration, she released the defendant ‘of * * * all * * * demands * * * and liabilities whatsoever * * * against * * * [him] * * *’ with an exception not here material. There was evidence that in connection with the settlement the plaintiff agreed to dismiss the pending proceeding against the defendant to which we have already referred. On July 1, 1937, a decree was entered in the Probate Court dismissing the probate petition, ‘Upon the agreement of the parties.’ Upon the same day a petition to revoke this decree on the ground of mistake was filed by the petitioner (the plaintiff in this case). The mistake alleged was that the parties ‘intended to introduce evidence in order that the court might make a finding of fact relative to the amount which the respondent * * * was required to pay to the * * * petitioner as executrix; that the said respondent did pay to the petitioner the sum of * * * $42,250 in settlement of the claim as set forth in the petition in equity, which sum does not appear in the decree [dismissing the petition] entered by this court.’ The prayer of the petition to revoke was in substance that the former decree dismissing the petition be revoked and that the parties be permitted to introduce evidence as to the sum paid to the petitioner as aforesaid, and ‘that the court enter its final decree in accordance with said evidence.’ This petition was allowed by the judge of probate on October 21, 1937.

The main petition in the Probate Court thereafter came on for hearing and on October 25, 1937, a final decree was entered dissolving a temporary injunction and dismissing the petition. The decree contains the following recitals: ‘It appearing that said respondent, William T. Curley, has paid to said petitioner, as such executrix, the sum of forty-two thousand two hundred fifty dollars, in full settlement of all the right, title and interest which said estate had in said partnership: And it further appearing that all parties have agreed thereto.’ These recitals are followed by an order and decree of dismissal, which is recited to have been made after hearing and consideration. Two days after the entry of this decree the plaintiff filed her first and final account as executrix of the will of the testator in the Probate Court. It purported to be for the period beginning February 3, 1936, and ending October 3, 1937. It sets forth in schedule A the receipt of $42,250 in compromise settlement of the partnership interest of the testator. It...