316 Mass. 659 | Mass. | 1944
These two actions of tort to recover compensation for personal injuries and consequential damages come before us on the plaintiffs’ exceptions to the granting of the defendant’s motion in each case for a directed verdict in its favor and to the admission of certain evidence.
There was evidence that early in the year 1932 the plaintiffs were the owners of a five-room cottage in Framingham. In 1926 the defendant lent the plaintiffs $3,300 on a promissory note secured by a mortgage of the premises. By the terms of the note monthly payments were required. Late in 1932, being in default with respect to the payments, the plaintiff Edward (hereinafter referred to as Flynn) called upon the treasurer of the defendant and, as a result of a conversation with her, the plaintiffs deeded the property to the defendant. In January, 1933, in response to a notice from the defendant, Flynn called at the banking offices of
During the course of the trial certain of the defendant’s by-laws relative to the duties of directors, of whom Shea was one at the time of the letting, were offered in evidence by the defendant and admitted subject to the plaintiffs’ exceptions. So far as pertinent they provide: "Article VI. . . . Section 2. Duties of Directors. The Board of Directors shall manage the business and affairs of the corporation. . ..” “Article V. . . . Section 7. Quorum for Shareholders’ and Directors’ Meetings. Five members or a majority of the Board of Directors shall constitute a quorum of the Board of Directors.” “Article VII. . . . Section 4. Duties of the Security Committee. The Security Committee shall examine all real estate offered as security for loans. A written report thereon shall be made by at least two members of the Security Committee, signed by them, approving the security thereon, and certifying to the bank on the property, according to their best judgment.” "Article 6. . . . Section e. Treasurer and Assistant Treasurer. The Treasurer shall be the executive officer of the corporation unless the duties of the executive officer are conferred upon the President or Vice-President by a special vote of the directors.” There was no error in the admission of this evidence. It bore directly upon the question of the authority of the director Shea to bind the defendant by the alleged promises. The by-laws were not, however, conclusive as to that subject, and it was still open to the plaintiffs to show by extrinsic evidence that Shea had ostensible or apparent authority to enter into the agreement with the plaintiffs for the letting. See Federal National Bank v. O’Connell, 305 Mass. 559, 565, 567, and cases cited; Schleifer v. Worcester North Savings Institution, 306 Mass. 226, 228-229, and cases cited, S. C. 310 Mass. 110, 114-115. But even though it be assumed for the purposes of the cases, without so deciding,
The decisive principles of law governing agreements such as that relied upon by the plaintiffs in the present cases are well settled. In Fiorntino v. Mason, 233 Mass. 451, and Ryerson v. Fall River Philanthropic Burial Society, 315 Mass. 244, following many other similar decisions of this court, the governing principles are fully stated. To repeat those principles in detail would add nothing to our jurisprudence. It is sufficient to say, as is pointed out in the cases just cited, that in the second class of cases therein referred to, of which the present cases are examples, a mere agreement that the landlord will keep the premises in the same safe and livable condition in which they were at the time of the letting does not give rise in case of omission to repair to an action of tort against the landlord, that the language used in the cases at bar presents a question of law as to its interpretation and legal effect, and that properly interpreted a case is not presented coming within the third class defined in the Fiorntino and Ryerson cases, that is, cases where the landlord, agrees to “keep and maintain the premises in a condition of safety on his own responsibility and without reference to notice from the tenant . . . and by virtue of the agreement for letting shall have and constantly retain such possession of the premises as is necessary for that purpose.” Fiorntino v. Mason, 233 Mass. 451, 453. Ryerson v. Fall River Philanthropic Burial Society, 315 Mass. 244, 247-248. See also Collins v. Humphrey, 314 Mass. 759, 761-762.
In each case the entry will be
Exceptions overruled.