Beals v. Magaw

242 Mass. 328 | Mass. | 1922

Braley, J.

This is an action of contract on an account annexed to recover $19.17 paid February 19, 1919, by the plaintiff to the city of Boston for water rates at 851 Beacon Street. The plaintiff testified that some twelve or fourteen years previous to the payment the premises had been bought by him and others as trustees under an unrecorded declaration of trust, the title being taken in the name of one Little, an attorney then in the same law office as the plaintiff. A deed from him to the trustees was given which never was recorded and had been mislaid or lost. In February, 1919, the plaintiff began negotiations with the defendant for leasing the premises and, after an understanding had been reached but before the lease was executed, it was agreed that she might enter into possession. But, having done so, the defendant found the water had been turned off and upon inquiry ascertained that it would not be turned on unless the water bill of a previous tenant was paid. The defendant asked the plaintiff to cause the water to be turned on, and agreed to reimburse him for any amount he might be obliged to pay for future water rates. The plaintiff, after convincing the water department that the water could not lawfully be withheld until the bill of the previous tenant was paid, procured the turning on of the water by paying $19.17, “the smallest amount which would be received by the city as condition precedent to having the water turned on.” The payment was for the water rates to December 31, 1919, and included -no part of the “old bill.” The defendant, although the amount .paid has been demanded has never reimbursed the plaintiff. It further appears on the plaintiff’s evidence that on February 27, 1919, a lease was executed for a term running from the first of March to the last of August, 1919, with the rent payable in advance in equal monthly payments, by which the tenant covenanted to pay all water rates which might be assessed during the term. The defendant paid the rent for March but defaulted in the April payment, when the plaintiff leased the premises to a new tenant who caused her to be evicted. The lease to the defendant was signed “Albert E. Little by Sidney L. Beals, Atty,” and the plaintiff testified that he had authority from his co-trustee to manage the property while the title remained in Mr. Little, but on March 17, 1919, at Mr. Little’s request a new deed of the property was delivered to him by Mr. Little in which the trustees were named as grantees, which had been recorded, and that while he managed the property as trustee “the water rates were paid by him out of his own money as a personal accommodation to the tenant.” The plaintiff was corroborated by the evidence of his stenographer “that the defendant in her presence asked the plaintiff to have the water turned on and agreed to reimburse him for what he expended.”

The trial court could find on this evidence that the payment of the plaintiff was not voluntary but was made at the defendant’s request and for her benefit, Massachusetts Mutual Life Ins. Co. v. Green, 185 Mass. 306, and accordingly he could recover. But the plaintiff had the burden of proof, and, the defendant having testified that while she asked to have the water restored so that she might prepare the house for occupancy, she did not promise to pay water rates except as provided in the lease. The credibility of the witnesses was for the court and we cannot say as matter of law that the finding of the Chief Justice “that the request of the defendant to have water turned on . . . was part of preparation for occupation under a lease and that no promise to pay other than that contemplated to be made by covenants in the lease was made,” was unwarranted. American Malting Co. v. Souther Brewing Co. 194 Mass. 89. Lindenbaum, v. New York, New Haven & Hartford Railroad, 197 Mass. 314.

The fourth, fifth and seventh requests were refused rightly and the order dismissing the report is affirmed.

So ordered.