Kolas v. Larochelle

Decision Date16 January 1930
Citation169 N.E. 662,270 Mass. 49
PartiesKOLAS v. LAROCHELLE.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Middlesex County; W. H. Whiting, Judge.

Action by Costantina Kolas against Elxear J. Larochelle. Verdict was directed for defendant, and plaintiff brings exceptions. Exceptions sustained.

Harvey, Harvey & Walsh and R. B. Walsh, all of Lowell, for plaintiff.

F. Goldman, of Lowell, for defendant.

CARROLL, J.

The defendant, a deputy sheriff, attached four cows and three calves as the property of Mathis Kolas by virtue of a writ in which Kolas was named defendant, and Kremer and Parker, creditors of Mathis Kolas, were the plaintiffs. Costantina Kolas, the plaintiff in the present case, is the wife of Mathis.

There was evidence that the cows and calves had been purchased by Thomas Kolas, the plaintiff's son, and transferredto her ‘by bill of sale prior to the attachment’; that at the time of the attachment, August 13, 1925, she ‘still retained such title as she had acquired by virtue of said bill of sale’; that she was in possession of the animals when they were attached and they were kept at a farm in Chelmsford where she and her husband lived. The plaintiff admitted that at the time of the attachment she was carrying on the farm and selling milk on her separate account; that the cows and calves were used in this business; that neither she nor her husband had caused to be recorded with the town clerk of Chelmsford a married woman's certificate as required by G. L. c. 209, § 10.

It further appeared that the defendant removed the animals when attached to Lowell; that on September 4, 1925, Kremer and Parker, the plaintiffs in the original writ, made application to the defendant under G. L. c. 223, § 88, that the animals be appraised and sold as they were liable to perish and could not be kept without great and disproportionate expense; that the defendant gave notice to the attorney of Mathis Kolas, and caused the attached property to be appraised; that on September 5, 1925, the officer gave notice of the intended sale by posting a notice in the town hall in Chelmsford and by causing an advertisement to be inserted on the ninth day of September, 1925, in a newspaper published in Lowell, and on the tenth of September the attached property was sold at public auction; that thereafter the plaintiffs in the original action recovered judgment against Mathis Kolas, and on the execution which issued the defendant here paid to the execution creditors the proceeds of the sale.

The present action is in tort for the conversion of the four cows and three calves. A verdict was directed for the defendant and the plaintiff excepted.

The plaintiff's principal contention is that the defendant in making the sale did not observe the statute because he posted no notice as required in Lowell, where the sale was made, nor did he cause an advertisement to be inserted in a newspaper, if any, published in the town where the debtor had his last and usual place of business. The defendant contends that the attached property is to be treated as the property of Mathis, the husband, for the reason that the wife did not file a married woman's certificate, and therefore cannot raise the question of the defective notice. It was also contended that the plaintiff cannot raise the question of the imperfect notice because of the admission made by her counsel at the trial of the present action.

G. L. c. 209, § 10, requires that a married woman doing business on her separate account shall cause a certificate to be recorded in the town clerk's office where she does business, stating the nature of the business, her name and that of her husband, and certain other facts. If such certificate is not filed by the wife or her husband, the personal property employed in such business may be attached as the property of the husband and be taken on execution against him. The certificate was not filed as required by the statute.

The plaintiff's counsel in his opening stated to the jury that the case presented a simple issue; that the issue was, who owned the four cows and three calves on August 13, 1925; that he would try to show that the plaintiff owned them; that the defendant attached, at the time the property in question was attached, certain cows belonging to Mathis Kolas and to the taking of which there was no objection. The plaintiff called the defendant as a witness. During the course of his testimony, in answer to a question of the judge, the plaintiff's attorney stated it was agreed that there was no dispute about the validity of the attachment ‘as against the property of said Mathis Kolas.’ The defendant was then asked if on September 4, an application was made for an appraisal of the animals on the ground that they were liable to decrease in value. The judge asked plaintiff's counsel if the validity of these proceedings was questioned, to which counsel replied: ‘There is a little question about that * * * and I want to put it in the record’; he further stated, in effect, that he would show that the plaintiff had a right of...

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9 cases
  • Douglas v. Whittaker
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 9, 1949
    ... ... 534 , 538 ... Salem v. Batchelder, 267 Mass. 381 ... First National Bank v ... Groves, 269 Mass. 161 , 165. Kolas v. LaRochelle, 270 Mass ... 49, 53. Meeney v. Doyle, 276 Mass. 218 , 221. Gray v. Boston, ... 277 Mass. 166, 167. Williams v. Whitinsville Savings ... ...
  • Douglas v. Whittaker
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 9, 1949
    ...of Salem v. Batchelder, 267 Mass. 381, 166 N.E. 628;First National Bank v. Groves, 269 Mass. 161, 165, 168 N.E. 785;Kolas v. LaRochelle, 270 Mass. 49, 53, 169 N.E. 662; Meeney v. Doyle, 276 Mass. 218, 221, 177 N.E. 6;Gray v. Boston, 277 Mass. 166, 167;Williams v. Whitinsville Savings Bank, ......
  • Sluskonis v. Boston & M.R.R.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 5, 1938
    ...for the purpose of expressing admissions.’ Mercier v. Union Street Railway Co., 230 Mass. 397, 406, 119 N.E. 764, 767;Kolas v. LaRochelle, 270 Mass. 49, 53, 169 N.E. 662. Counsel may state expected evidence without admitting that all of it or every permissible inference from it is correct. ......
  • Bryant v. City of Boston
    • United States
    • Appeals Court of Massachusetts
    • February 26, 1981
    ...Wamesit Power Co. v. Allen, supra. Worcester v. Eisenbeiser, supra 7 Mass.App. at --- d, 387 N.E.2d 1154. See also Kolas v. LaRochelle, 270 Mass. 49, 54, 169 N.E. 662 (1930); Restatement (Second) of Torts § 211, Comment i (1965). Without such compliance by the city, the corporation's good f......
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