McQuaid v. Delaney

• Decision Date: 05 January 1933
• Parties: McQUAID v. DELANEY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

281 Mass. 334

183 N.E. 725

McQUAID

v.DELANEY et al.

Supreme Judicial Court of Massachusetts, Hampden.

Jan. 5, 1933.

Appeal from Superior Court, Hampden County; Greenhalge, Judge.

Suit by Mary L. McQuaid against Elizabeth Delaney and others. From an interlocutory decree overruling the exceptions of the defendant Terence B. O'Donnell to the master's report and confirming the report, and from a final decree in favor of the plaintiff, the defendant O'Donnell appeals.

Affirmed.

R. P. Stapleton, of Holyoke, for appellant.

M. L. Welcker, of Holyoke, for appellee.

CROSBY, J.

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: ‘Mullen vacating hotel. Furniture to be sold at auction Monday. Shall I buy so owners may rent furnished hotel or conduct same themselves.’ 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 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 of the receipts and disbursements of the hotel. Copies were sent to and received by the plaintiff, the first one showing a credit to Orrell of $3,850 paid for the furniture. On March 3, 1927, Orrell wrote the plaintiff with reference to two prospective tenants for the hotel and a store in the building. The plaintiff, by letter dated March 13, replied, expressing her views and making several inquiries concerning the property; and stating: ‘I heartily agree with you that your burden at present with the property is a heavy one. A note to the bank is the logical solution, but no one can expect me to volunteer my aid, when the entire deplorable situation was entered into without my sanction or even knowledge.’ In February, 1928, Robert W. Delaney, one of the defendants, offered to rent the hotel for five years upon certain terms. The defendants O'Donnell, Elizabeth L. Delaney and the plaintiff conferred with him and a lease was prepared on February 16, 1928, and signed by all the owners. After the lease was agreed to there was a discussion over the sale, value and price of the furniture; ‘the plaintiff refused to take part in that discussion, stating that she had no interest in the furniture.’ Orrell ceased to act as agent for the owners and one Allyn was chosen in his place and began his duties on March 1, 1928. Shortly after his appointment negotiations in which the plaintiff took no part were completed for a sale of the furniture to Robert W. Delaney for $2,000, and on March 9, 1928, Allyn wrote the plaintiff for her opinion of the sale. The plaintiff replied by...