Beauregard v. Smith, 258 Mass. 219

Beauregard v. Smith

258 Mass. 219 | Mass. | 1927

Braley, J.

The defendant and Lillian M. Clark on June 1, 1921, became partners with written articles of agreement under the name of M. Smith & Company for the purpose of carrying on the business of harness making and repairing at 586 Albany Street in the city of Boston, the articles among other terms providing that the partnership should terminate June 1, 1922. The defendant, however, who had assumed control of the business, refused an accounting and a suit in equity was brought by Clark which resulted in a decree that the defendant owed $829.06 with interest, upon payment of which her interest in the firm would terminate. The defendant having failed to comply with the decree, Clark brought a bill in equity for the appointment of a receiver to sell the business and apply the proceeds in payment. of the decree. The court by consent of parties appointed receivers, who sold the business to the plaintiff and delivered a bill of sale of “all the right, title and interest of Michael Smith in and to his business conducted under the name of Michael Smith & Company, including the machinery, equipment, stock in trade, raw materials, manufactured articles, and good will of said business.” The *221present case was submitted on agreed facts, and the trial judge has found that, against the objection of the plaintiff, the defendant has continued the business at the premises in question. The plaintiff does not question the right of the defendant to establish a competing business subject to the limitation that he could not solicit the trade of customers of the old firm. Moore v. Rawson, 199 Mass. 493, 497, 498. It is specifically prayed that the defendant be ordered to deliver possession, and that he be enjoined from preventing the plaintiff from becoming a tenant.

But, even if Smith is in occupation of the premises, of which the firm on the date of the sale were tenants at will, the court had no power to dispossess Smith, who has been allowed “to continue as a tenant,” or to compel the landlord to accept the plaintiff as a tenant. Cruttwell v. Lye, 17 Yes. 335. The decree dismissing the bill is affirmed with costs.

Ordered accordingly.