Mary L. Mcquaid v. Elizabeth Delaney
| Decision Date | 03 January 1933 |
| Citation | 281 Mass. 334 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | MARY L. McQUAID v. ELIZABETH DELANEY & others. |
September 22, 1932.
Present: RUGG, C.
J., CROSBY, WAIT DONAHUE, & LUMMUS, JJ.
Equity Jurisdiction, Accounting by cotenant. Agency, Scope of authority, Ratification.
Subsidiary findings by a master in a suit in equity were that one, who managed certain real estate, excepting a hotel thereon, as agent for several persons who were owners of the real estate as tenants in common, inquired of one of the owners whether furniture in the hotel, belonging to a tenant thereof, should be purchased by the owners; that the owner so addressed replied by telegram and letter that he would not be a party to the purchase; that the agent made the purchase and sent a notice thereof to said owner, who made no reply; that later the agent became the agent of the owners for the hotel as well as for the other portions of the real estate and sent monthly statements to said owner, the first statement showing a credit to the agent for the purchase price of the furniture and that said owner thereafter refused to take part in a discussion as to sale of the furniture and to sign a bill of sale thereof, on the ground that he had no interest therein.
Held, that such findings did not require, as a matter of law, a finding that said owner impliedly ratified the unauthorized act of the agent in purchasing the furniture; and a conclusion by the master that there was no such ratification must stand.
In a suit in equity for an accounting by the owner above mentioned against his cotenants, it appeared that one of the defendants, knowing of the plaintiff's attitude concerning the purchase of the furniture, instructed the agent to proceed with the purchase that the purchase price was paid by the agent from a bank account standing in his name as such; that said defendant was not an agent of the plaintiff; and that the furniture was sold at a loss. Held, that
(1) A finding was warranted that said defendant assumed full responsibility, so far as the plaintiff was concerned, for the purchase of the furniture;
(2) It was proper to order that said defendant pay to the plaintiff a proportion of said loss equal to the proportion of the plaintiff's interest in the real estate, and to dismiss the bill as against the other defendants.
BILL IN EQUITY, filed in the Superior Court on June 21, 1928, and described in the opinion.
The suit was referred to a master, material findings by whom are stated in the opinion. By order of Whiting, J., there were entered an interlocutory decree confirming the master's report, and a final decree ordering the defendant O'Donnell to pay the plaintiff $924.35 and dismissing the bill as to the other defendants. The defendant O'Donnell appealed from both decrees.
R.P. Stapleton, for the defendant Terence B. O'Donnell. M.L. Welcker, for the plaintiff, submitted a brief.
In this suit in equity the plaintiff, a resident of New York, seeks an accounting of certain money in connection with the purchase, from funds owned by the plaintiff and the defendants as tenants in common, of certain furniture in a hotel in Holyoke in the county of Hampden. All the parties at the time of the filing of the bill and for several years prior thereto were the owners in common of the real estate in the following proportions: the plaintiff five twelfths in fee; the defendant O'Donnell a life estate in five twelfths, with remainder over to his children in fee; the remaining six defendants, children of John L. Delaney, each owned one thirty-sixth in fee. The real estate was occupied in part by stores and offices, and the remainder was used for a hotel.
The master made the following findings: In September or October, 1921, all the owners appointed one Orrell, as agent, who collected the rents and exercised general management of the property with the exception of the hotel, until February 28, 1928. From some time before September, 1926, the premises used for hotel purposes were rented to one Mullen who owned the furniture and the equipment used by him, and he paid his rent directly to the owners. Later in September, 1926, the owners prepared to evict him, and he advertised the furniture for sale at public auction on the premises on September 27. Notice of the sale was published in a newspaper and a copy mailed by Orrell to the plaintiff. On September 24 Orrell telegraphed to the plaintiff as follows: The plaintiff telegraphed by night letter to Orrell on September 26 as follows: "I will not be party to buying furniture." She confirmed this by letter of the same date, more fully expressing her opinion about the matter. The defendant O'Donnell had a conference with Orrell concerning the purchase of the furniture on September 24, and another conference on the following day at which the defendants O'Donnell and Elizabeth Delaney were present with Orrell. O'Donnell instructed Orrell to have an appraisal made of the furniture, and a price of $3,850 was reported to O'Donnell, who then directed that Mullen be notified that the owners of the real estate would pay that sum. Thereafter, and before the time set for the auction sale, Mullen executed a bill of sale to all of the owners of the real estate. After Orrell received the telegram from the plaintiff he read it to O'Donnell, who instructed him to proceed with the sale; this was done, Orrell paying for the furniture the sum of $3,850 from a savings account standing in his name as agent. On October 14 following, Orrell wrote a letter to the plaintiff respecting the purchase of the furniture; she did not reply to this letter. Thereafter Orrell continued to act as agent for the owners until February, 1928, when he took general charge and conducted the hotel and the management of the rest of the property. He rendered monthly statements showing collections and expenditures, and a separate statement...
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