280 Mass. 573 | Mass. | 1932
This is an appeal from an order entered in the Superior Court sustaining a demurrer to the plaintiff’s declaration. The action originally was brought by Lorenzo Bretta and Alice Bretta, but by motion subsequently filed the plaintiffs were allowed to] amend their writ and declaration by striking out the name of Lorenzo Bretta and by adding after the words “action of tort” the words “or contract.” The first count of the declaration in substance alleges that the defendant induced the plaintiff to execute a deed of a certain parcel of land owned by the plaintiff; that the name of the grantee was to be filled in the deed by the defendant in the presence of the plaintiff; that after filling in the name of the grantee the defendant was to deliver the deed to the grantee; that the name of the grantee to be inserted in the deed was Charlotte Combs; that the defendant in the presence of the plaintiff said that he then and there had filled in the name of Charlotte Combs as grantee and would deliver the deed to her; that relying on said representations the plaintiff told the defendant to deliver the deed to said Charlotte Combs, but the defendant wrongfully and without right filled in the name of a person other than Charlotte Combs as grantee and delivered the deed to that person “depriving the plaintiff of her property, all to her great damage.” The second count in substance alleges that the defendant was the authorized agent of Charlotte Combs, and that as such agent he sold to the plaintiff some real estate; that in payment therefor the plaintiff gave among other things a deed of certain real estate; that the deed was signed by the plaintiff and the defendant was to fill in the name of Charlotte Combs as grantee and deliver the deed to her; that the defendant wrongfully and without right filled in the name of another than Charlotte Combs as grantee and delivered the deed to that person, “depriving the plaintiff of her property, all to her great damage.” Both counts are alleged to be for the same cause of action. To this declaration the defendant
(a) The first ground of error alleged by the plaintiff is that the demurrer is not in the form required by the statute. It is provided by G. L. (Ter. Ed.) c. 231, § 18, Second, that a demurrer may be for the cause “That the matters contained in the declaration or in some count thereof are insufficient in law to enable the plaintiff to maintain his action.” The demurrer is in substantial conformity to the language of the statute and is therefore correct in form. See Chenery v. Holden, 16 Gray, 125; Proctor v. Stone, 1 Allen, 193, 196; Whiton v. Batchelder & Lincoln Corp. 179 Mass. 169, 172.
(b) The second ground of error argued by the plaintiff is that, since the answer preceded the demurrer, the demurrer was waived. This contention cannot be sustained. It is common practice for a demurrer and an answer to be filed to a declaration. For aught that appears, the answer and demurrer in the present case were filed at the same time, and, as the demurrer was heard and determined before any trial on the merits, no sound reason appears why the demurrer should be held to have been waived. The decision in Simonds v. Parker, 1 Met. 508, 512, cited by the plaintiff, does not sustain the plaintiff’s contention.
(c) The only allegation of injury or damage in the declaration appears at the end of each count, wherein it is set forth that the alleged wrongful acts of the defendant resulted in “depriving the plaintiff of her property, all to her great damage.” This conclusion is not supported by the facts alleged. The case of Phelps v. Sullivan, 140 Mass. 36, is cited by the plaintiff. In that case it was said at page 37: “When a grantor signs and seals a deed, leaving unfilled blanks, and gives it to an agent with authority to fill the blanks and deliver it, if the agent fills the blanks as
Order sustaining demurrer affirmed.