Gordon v. O'Brien

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: RONAN
• Citation: 71 N.E.2d 221,320 Mass. 739
• Parties: GORDON v. O'BRIEN et al.
• Decision Date: 01 February 1947

320 Mass. 739
71 N.E.2d 221

GORDON
v.
O'BRIEN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 1, 1947.

Suit by George Gordon against Mary G. O'Brien, Michael J. O'Brien, and William I. Norton for specific performance of a contract to convey certain premises to plaintiff. From a final decree in favor of the plaintiff against the defendants O'Brien, the defendants O'Brien appeal, and from that part of the decree which dismissed the bill as to defendant Norton, the plaintiff appeals.

Final decree reversed and decree directed to be entered dismissing the bill.

[71 N.E.2d 222]

Appeal from Superior Court, Suffolk County; Morton, Judge.

Before FIELD, C. J., LUMMUS, QUA, DOLAN and RONAN, JJ.

J. Levensohn, of Boston, for plaintiff.

L. H. Weinstein and J. L. Crowley, both of Boston, for defendants O'Brien.

RONAN, Justice.

These are appeals by the defendants O'Brien from a final decree ordering them specifically to perform a contract alleged to have been made between them and the plaintiff by ordering them to convey certain premises to the plaintiff. The plaintiff has also appealed from the same decree which dismissed the bill as to the remaining defendant, Mr. Norton.

We have a transcript of the evidence and a report of the material facts. All questions of law, fact and discretion are open for our decision. We can find

[71 N.E.2d 223]

facts for ourselves in addition to those found by the judge and, if satisfied that he was plainly wrong in making certain findings, we can find facts contrary to such findings made by him. Lowell Bar Association v. Loeb, 315 Mass. 176, 178, 52 N.E.2d 27;Shattuck v. Wood Memorial Home, Inc., 319 Mass. 444, 445, 66 N.E.2d 568.

The facts may be briefly summarized. The plaintiff in March, 1945, was told by the defendant Mary G. O'Brien in the presence of her husband, the defendant Michael J. O'Brien, that she was willing to sell certain premises which she owned on Hawley Street in Boston for $7,500. The plaintiff subsequently inspected these premises, and, after various conferences with O'Brien orally agreed with him to purchase these premises for $7,500. O'Brien on October 1, 1945, telephoned to the defendant Mr. Norton, who had acted for nearly twenty years as attorney for the O'Briens, stating that he had sold the property and requesting Mr. Norton to go to the premises. When Mr. Norton arrived, he met the plaintiff and O'Brien, and suggested to O'Brien that he ascertain from his wife whether the oral agreement which O'Brien had made with the plaintiff was satisfactory to her and that O'Brien could then report to him. O'Brien, in the presence of the plaintiff, on October 2, 1945, telephoned to Mr. Norton, and as result the plaintiff went to the office of Mr. Norton where he made a deposit of $300 and received a written memorandum, which could be found to contain all the essential terms of the oral contract of sale and which also stated that formal agreements would be executed on or before October 5, 1945. The only signature on this memorandum was ‘Wm. I. Norton, Attorney for Annie G. O'Brien.’ Mrs. O'Brien refused to sign any agreement when requested to do so by Mr. Norton, and she refused to accept the balance of the purchase price when it was seasonably tendered to her by the plaintiff.

The defendants have set up the statute of frauds. We assume in favor of the plaintiff that Mr. Norton inadvertently wrote ‘Annie’ for ‘Mary’ in signing the memorandum, and that this mistake would not invalidate the instrument. See Sanborn v. Flagler, 9 Allen, 474;Walker v. Walker, 175 Mass. 349 56 N.E. 601;Irving v. Goodimate Co., 320 Mass. 454, 70 N.E.2d 414. The burden of proof was upon the plaintiff to show that Mr. Norton had authority to sign in behalf of Mrs. O'Brien. Jacobson v. Perman, 238 Mass. 445, 131 N.E. 174;Des Brisay v. Foss, 264 Mass. 102, 109, 162 N.E. 4. The fact that he had acted as her attorney for nearly twenty years or that he signed a paper in her behalf in the sale of a parcel of land in Nantasket in March, 1945, did not establish any general agency on his part to sign the memorandum of October 2, 1945. Nourse v. Jennings, 180 Mass. 592, 595, 596, 62 N.E. 974;Zilli v. Rome, 240 Mass. 368, 370, 134 N.E. 622. He never communicated with her until a few days after he...