Green v. Danahy

• Decision Date: 12 February 1916
• Citation: 111 N.E. 675,223 Mass. 1
• Parties: GREEN v. DANAHY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

223 Mass. 1

111 N.E. 675

GREEN

v.DANAHY.

Supreme Judicial Court of Massachusetts, Essex.

Feb. 12, 1916.

Appeal from Superior Court, Essex County; William Hamilton, Judge.

Suit by Henry J. Green against Timothy J. Danahy. From a decree dismissing the bill, plaintiff appeals. Affirmed.

Henry R. Mayo, of Lynn, for appellant.

Daniel L. Smith, of Boston, for appellee.

CROSBY, J.

[1] The certificate which was delivered to the plaintiff by the defendant states that:

The right ‘is granted to him and the Roman Catholic members of his family to bury in lot No. 223, Sec. A. in St. Mary's Catholic Cemetery, Needham, Mass., subject always to the following regulations, or such others as may be from time to time prescribed in relation to burials in the said cemetery.’

Then follow several provisions, some of which relate to occupancy of the lot and others concern the manner in which interments shall be made therein. Paragraph 2 of the certificate also states that:

‘It is to be expressly understood that this certificate is not a conveyance of real estate, nor does it confer any right to sell or transfer the lot herein mentioned.’

The right which the plaintiff received under this certificate was merely a right of burial. It was merely a license or privilege of burial, and the terms upon which it could be exercised were subject to such reasonable rules and regulations as the defendant, should from time to time impose. McCrea v. Marsh, 12 Gray, 211, 71 Am. Dec. 745;Burton v. Scherpf, 1 Allen, 133, 79 Am. Dec. 717;Sohier v. Trinity Church, 109 Mass. 1;Dwenger v. Geary, 113 Ind. 106, 14 N. E. 903;McGuire v. St. Patrick's Cathedral, 54 Hun, 207, 7 N. Y. Supp. 345; 6 Cyc. 711, 717, 718, 719.

[2] The provision in the certificate that it is granted subject to the regulations therein contained and ‘such others as may be from time to time prescribed in relation to burials in said cemetery’ authorized the imposition of regulations in addition to those expressly stated in the certificate, and such regulations properly might be in writing or orally communicated when the certificate was issued, and the consideration was paid therefor. The rule that parol evidence is not admissible to alter, vary or control a contract in writing is not applicable to such an instrument, the express language of which authorized alterations and variations from time to time. See North Packing & Provision Co. v. Lynch, 196 Mass. 204,81 N. E. 894.

The judge of the superior court, before whom the case was heard, found that just before the agreement for the issuance of the certificate to the plaintiff had been completed, and while the parties were in the cemetery and the plaintiff was making a choice of lots, the defendant stated to the plaintiff in substance:

‘That the plaintiff must assume the duty of grading and caring for the lot that he purchased, and if he failed to perform that duty the defendant would have recourse to drastic measures which might go so far as to cause the removal of the remains that had been interred in it; that the price of the lot was made very low because of this burden that was imposed upon the purchaser.’

The court further finds:

‘That plaintiff did not object to these conditions and impliedly assented to them; * * * that the said certificate did not and was not intended to contain all the terms of the contract but was a mere memorandum and that the oral conditions as to care and grading formed a part of...