Howland v. Stowe

• Court: United States State Supreme Judicial Court of Massachusetts
• Citation: 290 Mass. 142,194 N.E. 888
• Parties: HOWLAND v. STOWE.
• Decision Date: 13 March 1935

290 Mass. 142
194 N.E. 888

HOWLAND
v.
STOWE.

Supreme Judicial Court of Massachusetts, Worcester.

March 13, 1935.

Exceptions from Superior Court, Worcester County; Dillon, Judge.

Action of contract by Fred A. Howland against Martin L. Stowe, tried without a jury. There was a finding for defendant for a balance on a declaration in set-off in the sum of $1,975.04, and plaintiff brings exceptions.

Exceptions sustained, and judgment to be entered for defendant in accordance with opinion.

[290 Mass. 144]

[194 N.E. 889]

C. E. Tupper, of Worcester, for plaintiff.

P. R. O'Connell, of Worcester, for defendant.

LUMMUS, Justice.

The facts appear in the report of an auditor. A farm in Shrewsbury was conveyed on February 24, 1921, to three persons as tenants in common. They were the defendant, his sister Caroline R. Howland, and her son, the plaintiff. The defendant and the plaintiff each paid $2,500 on account of the purchase price, and the farm was acquired

[194 N.E. 890]

subject to a mortgage for $2,800 which the grantees assumed and agreed to pay. Caroline R. Howland paid nothing on account of the purchase price. She died intestate May 19, 1930, leaving the plaintiff and his brother George Howland as her only heirs.

All three of the cotenants lived together on the farm from the early part of 1921 until the death of Mrs. Howland. She kept house for the two men, got her living from them, and received no other compensation. The plaintiff worked in Worcester and did little work on the farm, but paid most of the bills. The defendant worked on the farm, and furnished much of the food for the family table. The parties lived together in domestic peace until after Mrs. Howland died and until the plaintiff married at some time before August 1, 1931.

On December 21, 1931, the plaintiff brought this action of contract to recover for various expenses of the maintenance of the property, covering the entire period of ownership. The defendant filed a declaration in set-off, covering the same period, and claiming payment for labor and expenses upon the property. On September 23, 1932, the case was referred to an auditor, whose findings of fact were to be final.

The auditor allowed the defendant for mortgage interest, $336, mortgage principal and interest, $2,889.13, and taxes for 1921, 1922 and 1923, $393, paid out of his own money, a total of $3,618.13. The plaintiff was found to owe him half of that, or $1,809.07. On the other hand, the auditor allowed the plaintiff for taxes paid in more recent years, [290 Mass. 145]out of his own money, the amount of $1,293.09. The defendant was found to owe him half of that, or $646.55. The net balance owed to the defendant from the plaintiff, exclusive of interest, was found to be $1,162.52.

All the other items claimed by either side are disposed of by the finding of the auditor that they were voluntary contributions of labor, goods or money, made without expectation or promise, express or implied, that they would be paid for. One item in the account annexed to the plaintiff's declaration, ‘96. To exclusive use of land of farm in Town of Shrewsbury, Mass. and plaintiff's deprivation thereof, from Mar. 1, 1921 to Aug. 1, 1931, $5,000,’ if proper for an account annexed, is disposed of by the finding that he was never ousted or excluded from the common property. Nickerson v. Nickerson, 235 Mass. 348, 352, 126 N. E. 834;Carroll v. Caroll, 188 Mass. 558, 74 N. E. 913;Giuggio v. Paoli, 244 Mass. 279, 138 N. E. 814.

The plaintiff brought in forty-two objections, which were appended to the auditor's report as required by Rules 89 and 90 of the Superior Court (1932). These objections had no standing except as the foundation of a motion to recommit the report for the correction of errors, which has long been the proper remedy for errors by an auditor whose findings of fact are final. Lunn & Sweet Co. v. Wolfman, 268 Mass. 345, 349, 167 N. E. 641, and cases cited. McClintic-Marshall Co. v. Freedman, 274 Mass. 558, 561, 175 N. E. 55. Compare Spilios v. Papps (Mass.) 192 N. E. 155. No such motion was filed. Instead, the plaintiff moved ‘to discharge the rule to the auditor, and the...