De Wolfe v. McAllister

• Decision Date: 28 February 1918
• Citation: 229 Mass. 410,118 N.E. 885
• Parties: DE WOLFE v. McALLISTER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

229 Mass. 410

118 N.E. 885

DE WOLFE

v.McALLISTER et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 28, 1918.

Exceptions from Superior Court, Middlesex County; Marcus Morton, Judge.

Action by Edward G. De Wolfe against Frank A. McAllister and others. There was verdict for defendants, and plaintiff excepts. Exceptions overruled.

The testimony of the conversation between defendant Roberts and the witnesses Richards and Black, referred to in the opinion, was as follows:

Lyman H. Richards testified that he was a deputy sheriff living in Malden; that he knew Mrs. Roberts since she was a child, that he knew McAllister for about thirty years, Josselyn since this case, and De Wolfe for about three years; that he was president of the Maine Club, a social club of Maine people, and that Mrs. Roberts was a member and that Mrs. De Wolfe was a very active member, having been appointed chairman of the January committee and her husband helping her; that Mrs. Roberts came to him in the corridor after one meeting night in the spring of 1915, and asked him how she could get a tenant out of her house; that he told her to get a lawyer, and she said she didn't want to go to law, she wanted the cheapest way, and he referred her to John Dearington, a constable in Everett; that he told her there were men who would take a lease of the place and get peaceful possession; she said the tenant was Dr. De Wolfe and he owed her $70; that Dr. De Wolfe came to his house soon after Labor Day; that Mr. McAllister came to see him; that after plaintiff came to him he telephoned to Mr. McAllister and asked him to be easy on the doctor, not to force him out too quick, he wanted a little time; that Mr. McAllister said he had no wish to push the doctor, he was willing to give him a reasonable time but Mrs. Roberts wanted her house and it was his business to get it for her as soon as he could, but he was willing to give the doctor a little time; that this was in September; that he saw Mrs. Roberts after talking with Dr. De Wolfe and told her that he had seen plaintiff, and she said she wanted to get her house; that she told witness she had another tenant to go in as soon as she could get the tenement.

William A. Black testified that he lived in Malden; that he was in the retail furniture business, for five years; that he knew Carrie A. Roberts, Mr. McAllister, and Dr. De Wolfe; that he had business dealings with all three of them; that awhile ago Dr. De Wolfe was doing business with him, and that in October, 1915, Mrs. Roberts came to see him; that Dr. De Wolfe had a credit account with him then; that Mrs. Roberts was in on business and said that Dr. De Wolfe wasn't paying her rent in the house and if he had any money due him he better look out, in a friendly manner, as a friend of his, man to man, that is all, and as a result of this talk he did not want to give Dr. De Wolfe more goods; that plaintiff owed him fourteen dollars, which he paid when he got some chairs delivered to him, that had been taken back to be made satisfactory; that she was a woman he would believe very quickly, a good customer in the store; that was the reason that he commenced to look out.

John Louis Sheehan and Fredk. W. Miller, Jr., both of Boston, for plaintiff.

Arthur P. Stone, of Boston, for defendants.

CROSBY, J.

In September, 1915, and for about three years previously, the plaintiff occupied as a tenant at will a tenement owned in part by the defendant Roberts. From February, 1915, up to September 7th following, the rent due from the plaintiff was in arrears; and on the latter date the defendant Roberts for the purpose of terminating the tenancy, executed a lease in writing to the defendant McAllister, who was a constable. McAllister served a notice on the plaintiff to vacate the premises, and afterwards, brought an action under R. L. c. 181, § 1, and obtained judgment against him for possession; the plaintiff vacated the premises the day before execution for possession was issued.

The defendant Josselyn was a real estate agent who secured tenants for the defendant Roberts at different times.

The plaintiff's declaration is in three counts, each of which in substance alleges that the defendants conspired to injure him by evicting him from the house in which he lived and had his office.

The plaintiff contends that the second count is a count for malicious prosecution. While it contains some allegations appropriate for such a count, it is apparent that it is founded upon an alleged conspiracy entered into by the defendants to evict him from the...