Sidebilder
PDF
ePub

en were,

After the execution of the agreement of dred and fifty dollars ($650.00) per annum un. January 6, 1923, Magune went to the shop til the expiration thereof, and we hereby agree of the defendants a little more.

to indemnify you and hold you harmless from

all rents, debts and losses of the business, in"He did not keep books of account or write cluding in such debts and losses any costs or any letters, or hire anybody, or fire anybody, expenses incurred on account or by reason of or buy any goods; he has met customers there, any litigation against you or the partnership but did not do any business with them. or carry questioning your right or the right of the parton any business conversation with them; he nership to use the name of John G. Mitchell

, participated in the conduct of the business in proportion among us to our respective shares after January, 1923, to a greater extent, in in the net profits of the business.” going there oftener and making suggestions in such things as he had previously done in re Assuming that the executrix of the will gard to the business; he once suggested and in- of John G. Mitchell as such had authority to sisted that they fix the place up 'a little over a authorize the use of the name John G. Mitch. year ago,' and he always had a watchful eye on ell; that no consideration was required to the business as far as he could under the cir- give validity to such an act; and that within cumstances to see that the business went on in the usual way.'

"His interest in the busi- its terms the gift was not revocable; we ness was to see that it was run in a certain turn to the letters of Mrs. Mitchell dated way and to make suggestions and that be November 16, 197 and May 16, 1916, to asshould have the satisfaction of seeing that certain therefrom the measure and the quan. things went on as they used to go on; he felt tity of the right transferred from her to what you might call a sentimental interest Magune. The paper of November 16, 1915, as well

as a practical interest; he never above quoted, in substance authorized the asserted the right to direct or insist that use of the name John G. Mitchell upon the they carry on the business in any particular way except in regard to fixing up the place; he terms Magune had the right to use it under inquired about the house from whom they the paper, above quoted, signed by John G. bought the goods and looked over the goods / Mitchell, April 22, 1909. That instrument, and looked over the books and looked at prices, all parties thereto other than Magune being inquired about who the men were who were dead, paraphrased, authorized Magune to orking for them, and who the new

use the name John G. Mitchell so long as he and the prices they were paying, and kept him- (Magune) “shall live and shall be engaged in self generally posted so far as he could; he carrying on said business (i. e. the business thought it was necessary because he wanted to of John G. Mitchell) either alone or in partbe satisfied that things were going on as they should." "He thought his only power over

nership with others." Magune, alone, has them was in the matter of the name and his never at any place carried on a tailoring power to refuse to extend the right to use it; business resembling the business which John he did not think that he had any different pow. G. Mitchell with his partners conducted beer after January, 1923, from what he had be- fore Mitchell retired from the firm of John fore."

G. Mitchell.

[1] There remains for decision the quesApril 5, 1924, the defendants and Magune tion, Is Magune engaged in carrying on said entered into a new agreement which in sub-business in partnership with the defendants stance, so far as concerns the matter in is- Gruener, Toner and Burton? The agreement sue, provided

which is denominated a partnership, executed "that their old agreement of copartnership April 5, 1924, provides that Magune "shall came to an end by its own terms on February receive as salary" "and as the sole amount 17, 1924, and that they desired to continue as of the profits thereof to which he may be encopartners for a further period of six years titled, the sum of six hundred fifty dollars from said date; they agreed to carry on busi- ($650) per annum payable in equal quarness as partners under the name of John G. terly payments and no more, to be deMitchell, and that Magune should receive from

ducted as the partnership business as salary and as the

an expense of the business in sole amount of the profits thereof to which he determining the net profits to be divided should be entitled $650 a year and should de- among the other partners." The agreement vote to the partnership business such of his further provides that "all checks, notes and time and attention as might be mutually satis- other writings pledging the credit or affectfactory to all the parties thereto and should ing the property of the partnership shall be not during the term of the partnership engage signed by either the party of the first part either directly or indirectly in any other mer

or the party of the second part. All ques. chant tailoring business."

tions of policy shall be determined, and all And on the same day Gruener, Toner, and purchases of stock shall be made by the parBurton executed and delivered to Magune ties of the first, second and third parts”; the agreement which follows:

that is, by Gruener, Toner and Burton. The “In consideration of the execution by you of provides a guarantee of the payment of $650

agreement of April 5, above quoted, further the copartnership agreement between us, to which this letter is annexed, we, the other and an indemnification from all losses in partners in said partnership, do hereby guaran- connection with the business or the present tee to you jointly that you will receive profits litigation over the right to use the name of from said partnership at the rate of six hun- | John G. Mitchell.

(146 N.E.) (2) Under the association agreement and ruptcy Act, $ 47a (2), as amended by Act Cong. the agreement of indemnity Magune has no June 25, 1910, § 8 (U. S. Comp. St. § 9631), word in the final determination of the pol- as against receiver in bankruptcy of mortgaiep or in the management of the firm busi- gor. ness; he has no interest as an owner in the

Appeal from Superior Court, Suffolk Counproperty of the firm; he has no right to

ty; Morton, Judge. share in its profits; he is not liable to make contribution; he could not have an account

Bill by Charles H. McGlue, receiver in ing in equity; he is indemnified against all bankruptcy of Joseph H. Loudon, against losses and obligations; his real and only Joseph H. Loudon and another, trustees of concern being that the firm and the members the Quaboag Realty Associates, and othof the firm shall remain sufficiently solvent ers, to recover property alleged to have been to pay the fixed annual sum of $650, for his conveyed by bankrupt in fraud of creditors. nominal association as a partner, with the Decree for plaintiff, and defendant Charles active, controlling members of the partner- D. Rood appeals. Affirmed. ship firm. A partnership is an association Chas. S. Ballard and Chas. J. Weston, both of two or more persons to carry on as co- of Springfield, for appellant. owners a business for profit. St. 1922, C. David J. Kelley, of Boston, for appellee. 486. Meehan v. Valentine, 145 U. S. 611, 623, 12 S. Ct. 972, 36 L. Ed. 835. There must

BRALEY, J. The defendant Charles D. be a voluntary contract of association for Rood, the appellant, contends that the fifth the purpose of sharing the profits and losses, paragraph of the final decree is erroneous. as such, which may arise from the use of It provides : capital, labor or skill in a common enterprise, and an intention on the part of the

“That the mortgage on personal property of principals to form a partnership for that 1921, given by the defendant Loudon to the

the Quaboag Realty Associates dated June 25, purpose.

Bacon v. Christian, 184 Ind. 517, defendant Rood to secure the payment of mon521, 111 N. E. 628; In re Marcuse & Co. (C. ey loaned to the defendant Loudon for which C. A.) 281 F. 928, 939; Dwinel v. Stone, 30 he gave the defendant Rood a note of the QuaMe. 384; Westcott v. Gilman, 170 Cal. 562, boag Realty Associates for $2,000, was not 568, 150 P. 777, Ann. Cas. 1916E, 437; recorded as required by law and is not valid Thompson v. Holden, 117 Mo. 118, 128, 22 mortgage as against the plaintiff. The defendS. W. 905; McDonald v. Matney, 82 Mo.

ant Rood is ordered to discharge the same." 358; Bestor v. Barker, 106 Ala. 240, 17 So. 389; De Rees v. Costaguta (C. C. A.) 275 F. exceptions, finds that the mortgage in ques

The master to whose report Rood took no 172; McMurtrie v. Guiler, 183 Mass. 451, 453, tion of an automobile and fourteen head of 67 N. E. 358; Rosenblum v. Springfield Prod- live stock was not recorded within 15 days uce Brokerage Co., 243 Mass. 111, 115, 137 from the date written in the instrument as N. E. 357. As between Magune and the other required by G. L. c. 255, $ 1. The appellant partners, the agreement created no such while conceding it was valid only as between community of interest in the whole prop- the parties, or those claiming under them, erty and business as is the essence of a part- argues that the mortgage having been given nership agreement under the decisions above in the name of the Quaboag Realty Associreferred to; and as against the rights of the ates, organized under a written declaration plaintiff it created a partnership in name

of trust with a capital of 100 transferable only.

shares, 98 of which were owned by Loudon, It results that the decree must be reversed the bankrupt and managing trustee, who with costs.

pledged them to Rood to secure his personal Decree accordingly.

loans other than the loan in question, the receiver is a shareholder, or associate, and therefore a party to the mortgage. If Loudon was adjudged a bankrupt, the trustee

would have all the rights of a judgment credMOGLUE v. LOUDON et al.

itor against whom the mortgage on the rec

ord would have been void. U. S. St. 1898, (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 30, 1925.)

C. 541, § 47a (2), as amended by U, S. St.

1910, c. 412 (U. S. Comp. St. § 9631). HasBankruptcy C 184 (2) – Unrecorded mortgage kell v. Merrill, 179 Mass. 120, 60 N. E. 485;

of association practically owned by bankrupt Clark v. Williams, 190 Mass. 219, 76 N. E. held invalid as against receiver in bankruptcy. 723; Goodrich v. Dore, 194 Mass. 493, 80 N.

Where mortgage on personal property of E. 480. See Duffy v. Charak, 236 U. S. 97, realty association, given by bankrupt, owning 35 S. Ct. 264, 59 L. Ed. 483, where it was as98 per cent. of its shares, to secure payment of money loaned him and for which he gave his sumed that a trustee in bankruptcy is not note, was not recorded, as required by G. L. a party to an unrecorded mortgage of perc. 255, § 1, it was not valid, in view of Bank- / sonal property within the meaning of our

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indo

59;

statute. The bankruptcy court, however, up beth M. Burnham, to enjoin defendants from on the filing of the petition could appoint a emptying waste into a certain drain. From receiver to take possession of all the prop-decrees dismissing the bills, plaintiff appeals. erty of the bankrupt which the trustee could Reversed, and cases to stand for further proreach and administer and hold it subject to ceedings. the further order of the court. U. S. St.

C. B. Terry, of Gloucester, for appellant 1898, c. 541, § 2 (3), being U. S. Comp. St. $

E. S. Abbott, of Boston, for appellees. 9586. It was the duty of the plaintiff to recover and to protect the bankrupt's estate until the petition was dismissed or a trustee

BRALEY, J. The city of Gloucester, the appointed, and, not being a party to the mort- domicile of the parties has never established gage, but acting solely in the interests of

a system of sewerage. But prior to 1874 an the bankrupt's creditors, who before bank- open brook, having its rise in swampy land ruptcy could have attached, seized, and held and fed by springs, ran from Prospect street the property, he is entitled to the relief on the north, which was laid out in 1835 given. Haskell v. Merrill, supra; Davis v.

when Gloucester was a town, down the eastMazzuchelli, 238 Mass. 556, 131 N. E. 186; erly side of Chestnut street, laid out in 1850 In re Schoenfield (D. C.) 190 F. 53,

by the selectmen, on the westerly side of Sharpe v. Doyle, 102 U. S. 686, 26 L. Ed. 277. which the premises of the defendant Tarr The decree must be affirmed with costs of channel to within a short distance of Main

abut. It flowed for many years in an open the appeal. Ordered accordingly.

street on the south, where, crossing under the street, it passed over land owned since February 16, 1907, by the plaintiff, to the sea. A sidewalk, at some time not shown by the

record, was built over the brook for subA. W. DODD & CO. V. TARR.

stantially its entire length from Prospect SAME V. BURNHAM.

street to the northerly side of Main street,

and the city, at the corner of Main and (Supreme Judicial Court of Massachusetts.

Chestnut streets, built a catch-basin and Essex. Jan. 30, 1925.)

connected it with the brook. Andrew W. 1. Municipal corporations Cm710—Property Dodd, one of the plaintiffs' predecessors in owners claiming under license to city, which title, owned and occupied premises on the it never exercised, held not licensees to use north side of Prospect street as a home from drain.

1881 to January 4, 1889, when he conveyed Where plaintiff granted revocable license to the property to the city. It is referred to in city to use his land for construction and main- the master's report as the "Huntress Home.” tenance of drain, but city never exercised li- Dodd, previous to 1884, laid a pipe drain cense, and drain was constructed by private under Prospect street and over private land contributions, and city never exercised right to Chestnut street, where it was connected to make repairs, other property owners had no right as licensees to use drain.

with the covered drain into which waste

and sewage were discharged. The defendant 2. Licenses Ow51-License to maintain drain Tarr, whose premises are connected with the appurtenant to lands conveyed, and not to be drain, acquired title March 15, 1900. The enlarged to include other lands.

defendant Burnham has owned her property License to city to maintain drain "as it now

since 1897, which abuts on the northerly stands," contained in deed to city, was appur- side of Prospect street and by intermediate tenant to estate conveyed, and could not be enlarged by construction to include lands of other drains has also been connected with the

Chestnut street drain. The estates of Dodd,

Tarr, and Burnham are on the record the 3. Injunction ww I 13–Property owner not es.

only estates which have used the drain. The topped by laches to en pin emptying of sew.

defendants however, have acquired no rights age through his property.

by prescription and, unless they have been Where property owners, who emptied sewage into drain crossing plaintiff's property, did licensed, or have an easement by grant, they not rely on representations or inaction of plain-are trespassers. Bigelow Carpet Co. v. Wigtiff's predecessors in title, who were unaware

gin, 209 Mass. 542, 95 N. E. 938. of defendant's use of drain, and plaintiff did not (1) May 16, 1884, Dodd and one Charles discover it until November, 1918, and filed bill W. Parsons, the plaintiffs' predecessors in to restrain use by defendants January 8, 1919; title and owners of seven-ninths of the land there was no unreasonable delay or acquies- and dock, by an indenture under seal with

the city, licensed, permitted and empowered

the municipality to construct and maintain Appeal from Superior Court, Essex Coun through their land on the easterly side of ty; J. Walsh, Judge.

Pearce street a drain, which now runs eastSeparate bills by A. W. Dodd & Co. erly from said street, with a clause of revoagainst D. Chester Tarr and against Eliza- cation, upon six months' notice in writing,

owners.

cence.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[ocr errors]

*

(146 N.E.) "to be given to the city by the licensors of of the plaintiff. It is contended by the detheir intention to revoke." The city cove- fendants that they are within its terms. nanted and agreed to construct, within a rea- But even if the grant is broadly phrased, sonable time, a catch-basin in Pearce street with no suggestion of any limitation of time, at the head of the drain in front of the li- or restriction as to the volume of sewage, censors' land, "to be so constructed as to pre- the easement was appurtenant to the estate vent gravel, dirt, sand, and other light ma- conveyed. It cannot be enlarged by conterial from washing into the dock

struction to include the lands of the defendthrough said drain; it being understood by ants. Barnes V. Lloyd, 112 Mass. 224; and between said parties

that this George v. Cox, 114 Mass. 382; Naumkeag license and permission is granted upon the Steam Cotton Co. v. American Glue Co., 244 espress condition and consideration that said Mass. 506, 139 N. E. 296. city shall fully perform its covenant and [3] The defendants finally urge that the agreement as above set forth.” The city, plaintiff ought not to be permitted to mainhowever, never acted, and it was not until tain the suit because of its unreasonable de1888 when, the cost being paid by private lay and acquiescence in what had been done. subscription to which Dodd contributed, the But the defendants are not found to have natural course of the brook or drain which relied on any representations, or inaction was "then carrying some sewage from the with knowledge of the facts even on the Huntress Heme" was so changed and divert- part of former owners who are not shown ed from its former course at the corner of to have been aware of the defendants' use of Main and Chestnut streets, as to run under the drain, and the plaintiff apparently did neath Pearce street, which opened from the not discover it until November, 1918, when it southerly side of Main street, and then demanded rental, which, if not paid, "your turned at a right angle and crossed the land drain will be discontinued," and the bill was in question, discharging into the dock. The filed January 8, 1919. course thereafter of the drain below the We therefore are unable to discover any northerly line of Main street "was entirely evidence of equitable estoppel, or of laches beneath the public streets until it entered which defeats relief. Sawyer v. Cook, 188 the plaintiff's land.”

Mass. 163, 74 N. E. 356; Attorney General It was contended by the defendants before v. Boston & Albany Railroad, 246 Mass. 292, the master that the work of diverting the 298, 299, 140 N. E. 928; Seretto v. Schell, brook was done by Dodd. But, while Dodd 247 Mass. 173, 177, 141 N. E. 871. was interested and “had underwritten, as it The decree dismissing the bill is reversed might perhaps be called, the financing of the and the case is to stand for further proceedwork,” it was done under the direction of the ings in the trial court. chairman of the board of health who solicit Ordered accordingly. ed and obtained the money from those who lived in the vicinity and, because of odors from the sewage, were interested in the relocation. While the city, under the terms of the indenture, is also permitted "at all

JASMIN V. MEANEY. reasonable times to enter upon said land for

DUBE V. SAME. purposes of repairing said drain and to repair it,” there is no finding that any entry

(Supreme Judicial Court of Massachusetts. has been made. The license never has been

Middlesex. Jan. 21, 1925.) exercised by the city, and it is unnecessary Master and servant Ow332(2)-Responsibility to decide whether if the city had done the

for acts of automobile driver held for jury. work and maintained the drain, and no no

Testimony that after collision defendant, tice of revocation having been given, the de-after examining plaintiff's automobile, told her fendants could rely on it as a defense. Rug- to have it fixed and he would pay expenses, and gles v. Lesure, 24 Pick. 187; Giles v. Sim- later requested her to send bill to him, held, onds, 15 Gray, 441, 77 Am. Dec. 373; Smith with other testimony, to make question of liav. Gloucester, 201 Mass. 329, 87 N. E. 626. bility for acts of driver one for jury. It is manifest, on the foregoing review of essential facts found by the master, that the

Exceptions from Superior Court, Middledefendants are not licensees.

sex County; R. W. Irwin, Judge. [2] The deed from Dodd to the city con Separate actions of tort by Eugenie A. Jas: tains this language:

min and by Mary Dube against Christopher "A right is granted to said city to have and T. Meaney to recover compensation for dammaintain the drain as it now stands and dis ages arising out of automobile collision. Vercharges on my land and wharf.”

dicts for plaintiffs, and defendant excepts. And the master finds that “the drain as it

Exceptions overruled. now stands" is the drain built in 1888, and S. Kalesky and F. D. Harrigan, both of that the “land and wharf" are the property Boston, for defendant.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 146 N.E.-17

PER CURIAM. These are actions of tort, property interest in enforcement of section 34 wherein the plaintiffs seek to recover com- which can be safeguarded by injunction. pensation for damages arising out of the collision of the automobile, owned and operated Appeal from Superior Court, Norfolk by one of the plaintiffs, in which both were County; W. Wait, Judge. riding, with an automobile owned by the de

Suit by the inhabitants of Canton against fendant and operated by one McCarthy. the Westbourne Cemetery Corporation of There was testimony to the effect that aft- Boston and others, to restrain defendants er the collision the plaintiff Mrs. Jasmin had from using described land for burial or cema conversation with the defendant in which, etery purposes, in violation of G. L. c. 114, after having examined her automobile, he & 34. From decree for complainant, defend, told her to have it fixed, mail the bill to ants appeal. Affirmed. him and he would pay the expenses, and that

J. F. Creed 'and J. J. Mansfield, both of he expected to pay her between $100 and $125, which was the estimated cost of re

Boston, for appellants. pairing it, and that later the defendant tele

F. G. Katzman, of Hyde Park, J. P. Vahey, phoned to inquire if she had had the ma

of Plymouth, and R. Clapp, of Boston, for ap

pellee. chine fixed and, on being told that she had not, he requested her to send him the bill

There as soon as the repairs were made.

PIERCE, J. This is a suit in equity to was other testimony bearing upon the ques

restrain the defendants from using a detion whether McCarthy at the time of the scribed tract of land, situated in the town collision was the agent of the defendant act- of Canton, for burial or cemetery purposes ing within the scope of his authority.

in violation of G. L. c. 114, 8 34. It comes Verdicts could not rightly have been di- before this court on an appeal from a final rected for the defendant upon this state of decree of a judge of the Superior Court, the evidence. The statements made by the enjoining the defendants and those claiming defendant to the plaintiff Mrs. Jasmin do under them from using, maintaining or lay. not appear to have been made for the pur- the purpose of burial or other cemetery pur

ing out the land described in the decree ''for pose of compromise. They may have been found by the jury to have been admissions of poses.” No question is raised as to the form

of the decree. liability, including, so far as necessary to that end, responsibility for the negligence of Mc. decision are that one Ross, in October, No

Succinctly stated the facts material to the Carthy. The case is governed by several vember and December, 1919, conveyed to the recent decisions. Dennison v. Swerdlove, 250

defendant Westbourne Cemetery Corporation Mass. 146 N. E. 27; Wiseman v. Rome, the tract of land described in the bill of com250 Mass. 146 N. E. 28; Mielke v. Do

plaint. This defendant acquired the title to brydnio, 244 Mass. 89, 92, 138 N. E. 561; the land with the intent to establish a Jew+ Ellis v. Pierce, 172 Mass. 220, 51 N. E. 974. ish cemetery and, for profit to the corporaExceptions overruled.

tion, to sell therein lots to Jewish societies and individuals. In furtherance of its purpose, in October and November, 1919, it sold portions of said land to the remaining de

fendants, and deeds therefor were duly exINHABITANTS OF CANTON V. WEST

ecuted. With the permit of the board of BOURNE CEMETERY CORPORATION

health of the town of Canton, two interments OF BOSTON et al.

were made in November and December, 1919, (Supreme Judicial Court of Massachusetts. by the defendants Trainor and Lemkin. An Norfolk. Jan. 30, 1925.)

application to the board of health for ap1. Cemeteries 9-"Permission of town" for

proval of the location of the cemetery was eemetery must result from vote in town meet. duly published by the direction of the board

of health three weeks in a newspaper pubing.

lished in the town of Canton. Under St. 1855, c. 257; Gen. St. c. 28,

A public 88 5, 11; Pub. St. c. 82, $$ 18, 21; R. L. c. hearing was had on the petition on October 78, § 30; and St. 1908, c. 379, § 1, "permis- 14, 1919, the application was granted on Ocsion of town" which must be given before land tober 15, 1919, and notice of such given the can be used for new cemetery, or extension petitioners. No appeal from the action of 'of old one must result from vote of inhabitants the board of health was taken by any person of town in town meeting legally assembled. under the right reserved by G. L. c. 114, $ 36. 2. Cemeteries E9_Statute regulating loca

Without any public hearing, on October 25, tion of cemetery enforceable by injunction 1919, the selectmen of the town of Canat suit of town.

ton voted to grant a permit to the defendWhen permission of town to use land for ant corporation to use the land in question cemetery purposes has not been obtained in for cemetery purposes. Thereafter the coraccordance with G. L. c. 114, § 34, town has poration expended money in improvements of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

« ForrigeFortsett »