Dewolfe v. Roberts

• Decision Date: 27 February 1918
• Citation: 229 Mass. 410
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: EDWARD G. DEWOLFE v. CARRIE A. ROBERTS & others.

229 Mass. 410

EDWARD G. DEWOLFE v. CARRIE A. ROBERTS & others.

Supreme Judicial Court of Massachusetts, Middlesex.

February 27, 1918

February 5, 1918.

Present: RUGG, C.

J., DE COURCY CROSBY, PIERCE, & CARROLL, JJ.

Conspiracy. Landlord and Tenant, Tenancy at will.

Summary Process. Evidence, Materiality. Practice, Civil, Exceptions.

In an action by a physician for an alleged unlawful conspiracy to injure the plaintiff by evicting him from the house in which he lived and had his office as a tenant at will of one of the defendants, the defendants other than the landlord were a constable to whom the landlord made a lease to terminate the plaintiff's tenancy at will and a real estate agent who obtained tenants for the defendant landlord. The plaintiff owed rent to the defendant landlord. The landlord was one of the owners of the house, who had authority to make the lease to the constable. The constable brought a summary process under R.L.c. 181, Section 1, and obtained a judgment for the possession of the house. Held, that there was no evidence for the jury that the defendants conspired to do any unlawful act or do any lawful act by unlawful means.

In the above described case it was pointed out that the defendant landlord had a right to terminate the plaintiff's tenancy upon the advice and with the assistance of the other defendants, that the landlord's motive in exercising this right was immaterial and that it did not matter whether he terminated the tenancy because of ill will toward the plaintiff or merely because the plaintiff had failed to pay the rent that was due.

In the case above described it also was held that questions addressed to the defendant landlord as to whether he intended that the constable should occupy the premises and whether he had agreed to let the house to another person when the plaintiff had moved out properly were excluded as immaterial, and also that a question addressed to the defendant constable as to whether in an action brought by him against the present plaintiff for rent he had testified that the lease was a "cover" lease and that "we did not want [the present plaintiff] to know" was excluded properly, it having no tendency to prove the conspiracy alleged.

In the same case it was pointed out that, as a verdict for the plaintiff would not have been warranted, the exclusion of evidence relating to damages was immaterial.

TORT by a physician against Carrie A. Roberts, in control of a two-family house numbered 629 on Main Street in Malden,

Charles M Josselyn, a real estate agent, and Frank A. McAllister, a constable, alleging a conspiracy to injure the plaintiff by evicting the plaintiff from the lower tenement of the house where he lived with his wife and had an office for practising medicine, the declaration being described further in the opinion. Writ dated September 19, 1916.

In the Superior Court the case was tried before Morton, J. The material facts shown by the evidence are stated in the opinion. At the close of the evidence the judge ordered a verdict for the defendants; and the plaintiff alleged exceptions, including certain exceptions to the exclusion of evidence which are mentioned in the opinion.

J. L. Sheehan, (F.

W. Miller, Jr., with him,) for the plaintiff.

A. P. Stone, for the defendants.

CROSBY, J. In September, 1915, and for about three years previously, the plaintiff occupied as a tenant at will a tenement owned in part by the defendant Roberts. From February, 1915, up to September 7 following, the rent due from the plaintiff was in arrears; and on the latter date the defendant Roberts, for the purpose of terminating the tenancy, executed a lease in writing to the defendant McAllister, who was a constable. McAllister served a notice on the plaintiff to vacate the premises, and afterwards brought a summary process under R.L.c. 181, Section 1, and obtained judgment against him for possession; the plaintiff vacated the premises the day before execution for possession was issued.

The defendant Josselyn was a real estate agent who secured tenants for the defendant Roberts at different times.

The plaintiff's declaration is in three counts, each of which in substance alleges that the defendants conspired to injure him by evicting him from the house in which he lived and had his office.

The plaintiff contends that the second count is a count for malicious prosecution. While it contains some allegations appropriate for such a count, it is apparent that it is founded upon an alleged conspiracy entered into by the defendants to evict him from the tenement. The declaration states that all the counts are for one and the same cause of action;...