Wolbarsht v. Donnelly

• Decision Date: 26 June 1935
• Citation: 197 N.E. 6,291 Mass. 229
• Parties: WOLBARSHT v. DONNELLY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

291 Mass. 229

197 N.E. 6

WOLBARSHT v. DONNELLY.

Supreme Judicial Court of Massachusetts, Suffolk.

June 26, 1935

Exceptions from Superior Court, Suffolk County; Brown, Judge.

Action of contract by Jacob L. Wolbarsht against Mary J. Donnelly doing business as John Donnelly & Sons, which was heard without a jury. Finding for plaintiff in sum of $160, and defendant saves exceptions.

Exceptions sustained.

M. Michelson, of Boston, for plaintiff.

J. M Maloney, of Boston, for defendant.

PIERCE, Justice.

In this action the plaintiff seeks to recover for the breach of a written contract under seal, between the plaintiff and the defendant (doing business as John Donnelly and Sons), a copy of which is set out in the record and is hereafter referred to as the ‘ roof lease.’

The plaintiff's substitute declaration was in three counts. The judge ruled that there could be no recovery on counts two and three and denied the defendant's request: ‘ 1. On all the evidence and the pleadings the plaintiff cannot recover on the first count of the substitute declaration and the finding of the court must be for the defendant on that count.’ The defendant excepted to the denial of this request and the plaintiff did not except to the ruling that there could be no recovery on counts two and three of the substitute declaration. Count 1 reads: ‘ And the plaintiff says that the defendant is and was at the time of the acts herein alleged engaged in business under the name and style of John Donnelly & Sons, that on or about the fifth day of February, 1930, the plaintiff and the defendant, by her duly authorized agent or representative, did enter into an agreement, a copy of which is hereto annexed and marked Exhibit ‘ A’ ; that the plaintiff has done all things on his part to be done by the terms of said agreement, but the defendant has breached and refused to perform the same, all to the great damage of the plaintiff as set forth in his writ. 'The answer of the defendant is a general denial, a denial of the genuineness of the defendant's signature and payment.

This ‘ roof lease’ was made February 5, 1930, and purports to ‘ demise and lease * * * the roof of the building numbered 60-64 Causeway Street and numbered 2 Billerica Street in Boston’ for the term of five years, beginning with the first day of April, 1930, at an ‘ annual rent of Three Dollars ($3.00) per linear foot of sign or structure erected or to be erected, in advance, the first payment to be made on the first day of April, 1930. Provided, however, that the minimum rent to be paid by the Lessees shall be Seventy-five Dollars ($75.00) per annum, irrespective of the size of the said sign or structure erected or to be erected.’ It was undisputed at the trial that no sign was erected on said roof under the ‘ roof lease.’ The ‘ roof lease,’ among others, contained two provisions or conditions which read: (1) ‘ It is agreed that the rent is not to be paid until John Donnelly & Sons have been granted permits as required by Commonwealth of Massachusetts and City of Boston, Mass.’ and (2) ‘ This lease and the provisions contained therein is subject to the granting of permits as required by the Commonwealth of Massachusetts and the City of Boston. The Lessees agree to exercise due diligence to secure said permits.’ The defendant admitted at the trial that Mary J. Donnelly, as trustee under the will of Edward C. Donnelly, was running the business carried on as John Donnelly and Sons on the fifth day of February, 1930, the date of the ‘ roof lease’ ; and ‘ also admitted * * * that the purported signature ‘ John Donnelly & Sons, by R. H. Hager, seal,’ as it appears on the copy of said ‘ roof lease’ was made by R. H. Hager,' the head of the real estate department of the operating division of John Donnelly and Sons. It is inferable from the defendant's brief that she no longer contends that R. H. Hager was not her duly authorized agent or that he did not as her representative have authority to execute the ‘ roof lease.’ See Alfano v. Donnelly, 285 Mass. 554, 189 N.E. 610.

Said Richard H. Hager, called by the plaintiff, testified as to the nature of his employment in the real estate department of John Donnelly and Sons in 1929 and 1930. He testified ...