185 Mass. 236 | Mass. | 1904
The plaintiff seeks to hold the defendant first upon the ground that she as executrix of the will of . her late husband Isaac H. Tucker was carrying on the business through her son Charles as her agent, and second on the ground that she, by her acts and omission to act when she should have acted and by her conduct in general, permitted Charles to hold himself out as conducting the business for the estate and the plaintiff in reliance upon that representation parted with its goods, and that therefore she is estopped to deny that she is individually responsible to the plaintiff. Shortly stated, the contention of the plaintiff is that the defendant is responsible either because she was the contracting party, or because she is estopped to deny that she was.
The second, third and fourth requests relate simply to the case as shown in the auditor’s report, and, inasmuch as there was other evidence introduced at the trial, they are open to the objection that they were requests for a ruling upon the effect of only a part of the evidence considered separately from the rest, and it is well settled that that is a sufficient reason for the refusal of the court to give them. We pass, therefore, to the consideration of the first request, which was in substance that on the evidence a verdict should be ordered for the plaintiff.
After the death of his father, Charles assumed charge and control of the business, and the defendant, neither as executrix nor as an individual, assumed any control or drew any money from the business; and the evidence tended to show that both the defendant and Charles believed that upon the death of the father the business passed under the will to Charles as his own, and that he took possession and carried it on not as the agent of his mother but as legatee under the will. It is true that he collected the bills which were unpaid at the time of his father’s death, and that he paid many of the business debts left by his father, but in doing all this the jury might have found that as between him and the estate he was acting under the rights granted to and the responsibilities imposed upon him as legatee by the will. To a certain extent, so far as respected the business, he had upon this view assumed as legatee to do what ordinarily is done by an executor. If he was thus acting, the fact is important and it furnishes a reasonable explanation of his conduct in doing in the business many things the duty to do which primarily rested upon the executrix.
It is urged, however, by the plaintiff that the son had not complied with the conditions of the bequest, and that therefore the defendant had no right to turn the business over to him; and the twelfth request embodies that proposition in substance. Upon that point the jury were instructed to the effect that this requirement of a guarantee was for the protection of the beneficiaries under the will, and that if the executrix saw fit to turn over the business to Charles without a guarantee or before a performance of the conditions named in the will, she might be liable to any parties aggrieved by that action, but that the plaintiff was not such a party, so far as material to this case; and that while the fact that Charles had not complied with the conditions could be taken into consideration upon the question whether'the business had been turned over to him, still it would not prevent Charles from carrying on the business on his own account. This seems to us to be correct. The question was whether Charles was actually carrying on the business on his own account with the consent of the executrix, and not whether she ought to have consented. Without a further recital of the evidence it is sufficient to say that the question whether the business was being carried on by the son on his own account, or as agent for the defendant, was a question of fact, and that in the evidence before the jury there is no fact conclusive against the validity of the finding that the son carried on the business on his own account. So far therefore as respects the first ground upon which the plaintiff relies, it was not entitled as matter of law to a verdict in its favor.
We now pass to the question of liability by estoppel. Assuming that the defendant did not carry on the business, has her conduct been such as to estop her from setting up that
Upon the question of estoppel, the plaintiff chiefly relies, however, on the conduct of the defendant with reference to the bank account kept in the name of “Estate of I. N. Tucker.” The auditor finds that Charles used this and no other bank account in his business, drawing checks under the style of “ Estate of I. N. Tucker, by Charles B. Tucker, attorney.” The defendant never drew any checks on this account. It appears that in December, 1899, the defendant signed a power of attorney authorizing Charles to draw as her attorney any check upon this account, and to indorse for deposit and collection any check
But we do not further discuss the matter of her conduct with reference to the alleged estoppel because it was a question for the jury whether the plaintiff was in any way misled by her actions as to the checks or in any other respect. The plaintiff never knew anything of this power of attorney, it does not appear that any single check signed thereunder was made directly to the plaintiff, or that the plaintiff relied in any respect upon the form of the check or signature in parting with its goods. While a strong argument might be made to show that the plaintiff was misled, still no witness called by the plaintiff testified to
As already stated, the twelfth"request was properly refused.
The instructions to the jury as to the matter contained in the seventeenth request were accurate and sufficiently full.
-Exceptions overruled.