Tilden v. Greenwood

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: C. ALLEN
• Citation: Tilden v. Greenwood, 149 Mass. 567, 22 N.E. 45 (Mass. 1889)
• Decision Date: 03 September 1889
• Parties: S. TILDEN v. GREENWOOD. MAUD G. TILDEN v. SAME. S. TILDEN, ADM'R, v. SAME, (two cases.) MILLICENT G. TILDEN v. SAME. J.G. TILDEN v. SAME. F.F. TILDEN v. SAME.

149 Mass. 567

22 N.E. 45

S. TILDEN

v.GREENWOOD.

MAUD G. TILDEN

v.SAME.

S. TILDEN, ADM'R,

v.SAME, (two cases.)

MILLICENT G. TILDEN

v.SAME.

J.G. TILDEN

v.SAME.

F.F. TILDEN

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 3, 1889.

Report from superior court, Suffolk county; J.W. HAMMOND, Judge.

These were actions of tort to recover damages for personal suffering caused by defective drainage. The judge ruled that the actions could not be maintained, and ordered verdicts for the defendant, which were returned, and the cases were reported to the supreme judicial court. The facts fully appear in the opinion.

C.G. Fall, for plaintiffs.

Richardson & Hale, for defendant.

C. ALLEN, J.

The ruling was a general one, that on all the evidence neither action could be maintained. If, therefore, it is found that in any essential particular the case of the several plaintiffs fails, judgment must be entered on the verdict for the defendant. The actions were originally brought against Frederick P. Greenwood, Charles Greenwood, and Adeline Greenwood; but for some reason not stated, at the close of the evidence, the plaintiff in each case discontinued as to all the defendants except Frederick P. Greenwood. The alleged misrepresentations upon which the several actions rest were made by Charles Greenwood alone, and the right to recover against Frederick must depend upon the production of evidence sufficient to show that he was bound by misrepresentations of Charles. The evidence as to the interest of Frederick P. Greenwood in the house, and as to the agency of Charles, and his authority to act for Frederick, is stated in full in the report. There was no controversy as to the facts. At the time when the house was let to Tilden, the record title stood in Frederick. He held his title under a deed given to him by Adeline Greenwood in November, 1881, and a deed from Charles, given in June, 1882, in order to convey his possible interest as tenant by the curtesy, the agreement being that the property was conveyed to Frederick in order to secure him for loans, and upon payment of the same he was to reconvey the property. The three Greenwoods all testified to this agreement in substantially the same terms. There was no evidence to contradict their testimony, and it is obvious that it was accepted at the trial as correct. No suggestion to the contrary has been made in the argument. The agreement for the reconveyance apparently was oral. The amount of the loans by Frederick and the terms of payment are not mentioned. There was nothing to show that, at the time of the alleged misrepresentations by Charles, upon which the several actions were founded, the loans of Frederick were overdue, or that he was ever in possession of the premises for foreclosure or otherwise, or ever took or claimed the rents and profits thereof. It did not appear that the contract of letting the premises to Tilden was made in Frederick's name. There was no evidence of any express authority from Frederick to Charles under which Charles was to act as the agent of Frederick. The only testimony bearing upon this point is contained in the following statement in the report: “In answer to interrogatories, Frederick also said that Charles Greenwood was away from home continuously, in California or elsewhere, from July 12, 1886, to the last part of October in the same year, and during that period Sabine and Durkee had the management and care of said property and collections of the rents therefrom, under an arrangement made with Charles Greenwood, and assented to by him. He further said that Charles Greenwood, during the time he [Frederick] held the record title, prior to said July 12, 1886, had the exclusive care and management of said property.” It thus appears that, at the time of the letting of the house to Tilden, Frederick was to be regarded in equity as mortgagee of the premises. The agreement to reconvey might be shown by parol. Campbell v. Dearborn, 109 Mass. 130;McDonough v. Squire, 111 Mass. 217;Hassam v. Barrett, 115 Mass. 256;Davis v. Ney, 125 Mass. 590;Cullen v. Carey, 146 Mass. 50, 15 N.E.Rep. 131. The defendant...