Hazen v. Warwick
| Decision Date | 03 June 1926 |
| Citation | 152 N.E. 342,256 Mass. 302 |
| Parties | HAZEN v. WARWICK et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Middlesex County.
Bill in equity by E. Roscoe Hazen against Earl A. Warwick and others. From a decree for plaintiff, defendants appeal. Affirmed.M. J. Mulkern and J. A. Pagum, both of Boston, for appellants.
J. J. Kaplan and E. E. Ginsburg, both of Boston, for appellee.
This is an appeal from a final decree of the superior court, wherein it is adjudged that certain real estate, which stood in the names of Etta Tayne Hazen and Florence H. Warwick, was and is the property of the copartnership composed of E. Roscoe Hazen and Earl A. Warwick, known as the Hazen & Warwick Garage; that the defendant Joseph Hart holds such interest in the same as may have been conveyed to him by the defendant Florence H. Warwick, by deed in which the defendant joined as trustee for the benefit of the said copartnership, subject to the obligation of the defendant Earl A. Warwick to sell and transfer his interest in the same and in all other assets of the said copartnership to the plaintiff E. Roscoe Hazen; that the defendant Hart holds in trust for the plaintiff Hazen the legal title to one-half interest in the said property conveyed to him by the defendant Florence H. Warwick, and all interest in the copartnership known as Hazen & Warwick Garage acquired by him by conveyance executed by the defendant Earl A. Warwick; and ordered and directed the defendant Hart forthwith, by good and sufficient deed, to transfer and convey to the plaintiff that one-half interest transferred to the defendant Hart by deed from the defendant Florence H. Warwick, and also to convey and transfer to the plaintiff all the right, title and interest of the defendant Hart in the partnership known as the Hazen & Warwick Garage, and all the assets thereof, including all rights in the said partnership and the assets thereof which the defendant Earl A. Warwick transferred or purported to transfer to the defendant Hart, upon the receipt from the plaintiff of the sum of $8,000. The decree further ordered that upon the payment of the sum of $8,000 by the plaintiff to the defendant Joseph Hart, the defendants Earl A. Warwick and Florence H. Warwick are required and directed by way of confirmation, forthwith to transfer and convey to the plaintiff E. Roscoe Hazen the undivided one-half interest in the said real estate Nos. 42, 44 and 46 Lebanon street, in the city of Malden, formerly held by said Florence H. Warwick for the benefit of the said copartnership; and further, that the defendant Earl A. Warwick, upon the payment of the said sum of $8,000 by the plaintiff to the defendant Hart, forthwith transfer and convey to the plaintiff E. Roscoe Hazen all the right, title and interest of the defendant Earl A. Warwick in a copartnership known as Hazen & Warwick Garage, and the assets thereof.
The decree above recited in part is based on the pleadings and on the report of a master, to which no party filed objection or exception. The bill is not demurred to and the statute of frauds is not pleaded.
The material facts found by the master succinctly stated are as follows: Hazen and Warwick were copartners under an agreement which was to continue until November 6, 1922; that period of time had not expired when the bill was brought, but did come to an end before the case came on for hearing. For some time before September 21, 1921, when the bill was filed, there were negotiations between the partners respecting the dissolution of the partnership and the buying out of the interest of one partner by the other. These culminated in August, 1921, in a proposition from the defendant Earl A. Warwick to buy or sell. On September 6, 1921, Warwick offered to sell his share for $8,000 and a Packard limousine car. As an alternative, he offered to buy Hazen's share of the partnership for $10,000 cash. This offer contemplated and included the transfer of onehalf interest in the real estate. On September 10, 1921, it was agreed that Hazen would purchase and Warwick would sell one-half interest in the partnership for the sum of $8,000 and the Packard limousine. It was agreed that the attorney for Warwick should draw the necessary papers for the dissolution of the partnership, the transfer of the one-half interest in the real estate and the other partnership assets, and that the partners should meet at the office of one Ginsburg on the following Monday, September 12.
After the papers were prepared and ready for delivery, Warwick learned in some way that the sale could not be carried through that day. These papers since that day have never been tendered by Warwick, or on his behalf, to Hazen; and there has never been a tender by Hazen, or by any one on his behalf, of $8,000 to Warwick. Hazen never had in his possession or control sufficient funds to pay $8,000 in cash to the Warwicks. He expected and intended to raise this amount of money partly by placing a mortgage on certain property owned by his mother, partly by money which he hoped to...
To continue reading
Request your trial
-
Donahue v. Rodd Electrotype Co. of New England, Inc.
...business affairs of the continuing partnership without the agreement of the other partners. G.L. c. 108A, § 27. See Hazen v. Warwick, 256 Mass. 302, 308, 152 N.E. 342 (1926).14 It would be difficult for the plaintiff in the instant case to establish breach of a fiduciary duty owed to the co......
-
Limpus v. Armstrong
...866 (1922). Preferred Underwriters, Inc. v. New York, N.H. & H.R.R., 243 Mass. 457, 463--464, 137 N.E. 590 (1923). Hazen v. Warwick, 256 Mass. 302, 307, 152 N.E. 342 (1926). Gevalt v. Diwoky, 319 Mass. 715, 716, 67 N.E.2d 481 (1946). SUN OIL CO. V. GREENBLATT, --- MASS.APP. ---, 314 N.E.2D ......
-
New England Trust Co. v. Spaulding
...is open to the defendants. Tobin v. Larkin, 183 Mass. 389, 67 N.E. 340;Strumskis v. Tilenas, 268 Mass. 550, 168 N.E. 157;Hazen v. Warwick, 256 Mass. 302, 152 N.E. 342. There was evidence that these special dividends had been paid each year for the last ten years prior to the date of the app......
-
Curley v. Mobil Oil Corp., 88-1295
...Mobil from further tender of performance of the agreement. See Horgan v. Ogilvie, 361 Mass. 13, 277 N.E.2d 821 (1972); Hazen v. Warwick, 256 Mass. 302, 152 N.E. 342 (1926); Limpus, 3 Mass.App.Ct. at 22, 322 N.E.2d at 190.5 Indeed, John Curley, in a letter to Barney Wood's attorney, stated t......