O'Neill v. Niccolls

• Decision Date: 06 June 1949
• Parties: O'NEILL et al. v. NICCOLLS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

324 Mass. 382

86 N.E.2d 522

O'NEILL et al.

v.NICCOLLS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 3, 1949.

Decided June 6, 1949.

Appeal from Superior Court, Suffolk County; Brogna, Judge.

Bill in equity by Arthur V. O'Neill and another against Francis A. Niccolls and another for specific performance of a contract to sell realty, wherein named defendant filed a counterclaim against his codefendant, Julia Redmond. From a decree for plaintiff against named defendant for loss suffered by breach of warranty and for named defendant against codefendant on the counterclaim, codefendant, Julia Redmond, appeals.

Modified and affirmed.

Before QUA, C. J., and LUMMUS, DOLAN, SPALDING and WILLIAMS, JJ.

H. A. Malkasian, Boston, for respondent appellee.

V. A. Canavan, Boston, for Julia Redmond, appellant respondent.

LUMMUS, Justice.

This is a bill in equity for specific performance of a written contract to sell to the plaintiffs a house and land in Boston. The findings of the judge disclose the following facts. On September 30, 1942, one Annie Redmond died, leaving as her heirs the defendant Julia Redmond, who was her sister, a brother Thomas Redmond, and five nephews and a niece. Her estate consisted of the real estate in question, which was subject to mortgages for $3,700. Julia Redmond was appointed administratrix on January 29, 1943.

On October 5, 1946, Julia Redmond ‘definitely retained’ the defendant Niccolls to represent her and the estate. She was ‘very difficult to handle,’ and Niccolls ‘was having much difficulty with her.’ At length, she assented ‘to permit Niccolls to try to get a buyer for the property,’ and signed a blank deed which was turned over to Niccolls. (It may be observed that that conferred no right to fill up the blank deed, for that could be authorized only by a power under seal, Bretta v. Meltzer, 280 Mass. 573, 576, 182 N.E. 827.) In February, 1947, the plaintiff Arthur V. O'Neill made an offer of $7,600, which he later raised to $7,800. On March 28, 1947, Niccolls drew an agreement to sell the house and land to O'Neill for $7,800, which Niccolls signed ‘Francis A. Niccolls, Attorney for Julia Redmond, Admx. of the Estate of Annie Redmond.’ O'Neill knew that he was not dealing with Niccolls as a principal. Niccolls did not inform Julia Redmond of the agreement before signing it. He received from O'Neill a deposit of $100.

On April 2, 1947, Niccolls wrote to Julia Redmond and the other heirs, ‘informing them that he had entered into the said agreement and giving its details.’ On April 25, 1947, Julia Redmond wrote him, justifying her previous unwillingness to convey by stating that she had received an offer of $9,000, but saying nothing about the agreement of March 28, 1947. The judge found that $7,800 was the fair market price of the property in February, 1947, but that ‘by the spring, because of the increased demand and scarcity of moderate priced dwellings, the price obtainable in the open market was at least $9,000.'

The judge found that when on October 28, 1946, Julia Redmond ‘acquiesced in the plan that Niccolls take the steps he considered advisable and necessary in order to get a buyer,’ she ‘led him to believe that she would back him up in that.’ The judge said he was ‘unable to find that Niccolls had authority to bind her to an agreement of sale for a specific price without first consulting her as to the price,’ and he found and ruled ‘that the agreement [of March 28, 1947] did not bind Julia Redmond personally.'

The judge found Niccolls liable to the plaintiff Arthur V. O'Neill for the deposit of $100, and for $472.50, which was the loss suffered by him by the breach of warranty by Niccolls that he had authority to sign the agreement of March 28, 1947. The liability of Niccolls to O'Neill is founded on tort. Henry W. Savage, Inc. v. Friedberg, 322 Mass. 321, 324, 77 N.E.2d 213.

On a counterclaim...