278 Mass. 585 | Mass. | 1932
This is a suit in equity in which the plaintiffs seek to restrain the defendants from selling or otherwise disposing of certain real estate described in the bill, and to require the defendants specifically to perform a certain agreement hereinafter set forth.
As no appeal was taken from the interlocutory decree overruling the objections and confirming the report, the objections cannot be considered unless the final decree is erroneously affected thereby; that does not appear. G. L. c. 214, § 27. Fay v. Corbett, 233 Mass. 403, 409, 410. Galkowski v. McManus, 257 Mass. 509, 510, 511. So far as the objections relate to alleged conclusions of law dealt with by the master, they are disposed of by the fact that the interlocutory decree confirmed the master’s report only as to matters of fact. The other objections are, in substance, that material facts have not been recited in the report, which omission materially and unfavorably affected the rights of the plaintiffs. The master was not
Although the defendants were owners as tenants in common of the real estate occupied by the plaintiffs under a written lease, the master specifically found that the “written statement . . . was not signed by the defendant Paolina Clemente nor did she authorize the defendant Antonio Clemente to sign for her”; “that at no time was the defendant Paolina Clemente present at any of the meetings of the party litigants.” These findings must stand. The evidence is not reported and the findings are not inconsistent with other findings or plainly wrong. Glover v. Waltham Laundry Co. 235 Mass. 330, 334. Cronan v. Commissioner of Banks, 254 Mass. 444, 446. Abbot v. Waltham Watch Co. 260 Mass. 81, 91. Davenport v. King, 273 Mass. 31, 34. Some of the facts found might show that the defendant Antonio Clemente was authorized to act as agent for his cotenant for certain purposes, but there is nothing to warrant a finding that he was authorized to act for her in making the agreement upon which the plaintiffs rely. She is not named as a party to it, and there is nothing to show that he purported to act for her.
The relation of principal and agent does not arise by implication out of a tenancy in common. Lonnqvist v. Lammi, 242 Mass. 574, 577.
The relation between the defendants was not that of partners. The plaintiffs contend that the defendants were partners and that Antonio Clemente as such was authorized to sign the agreement in question and bind his co-owner under c. 108A, §§ 9 (1) and 10 (2), added to the General Laws by St. 1922, c. 486. This contention cannot be sustained. These statutes have no application to the facts found. Moreover there was no allegation of such a relationship in the bill, nor did the master make any finding that the defendants were partners. A finding to
The final decree dismissing the bill must be affirmed, with costs.
Ordered accordingly.