306 Mass. 404 | Mass. | 1940
This is a suit in equity. The bill of complaint, filed January 20, 1939, alleges that the defendants Jeremiah L. Manning, John Francis Manning and Sarah Ruth Willard inherited in common a certain parcel of land known as 279 McGrath Highway, Somerville, as the heirs of Mary E. Flagg, and that the defendant Jeremiah L. Manning was appointed administrator of said estate on or about April 14, 1936. The bill alleges further that the plaintiff, on August 1, 1937, "entered into a written agreement with the . . . [defendant], Jeremiah L. Manning, to lease the land known as #279 McGrath Highway, Somerville, with option to buy, a copy of which is hereby annexed marked ‘A’; and further that on or about August 1, 1938, that your . . . [plaintiff] and the . . . [defendant], Jeremiah L. Manning, agreed to extend said agreement for another year, that is, up to and including July 31, 1939 and that in furtherance of this agreement the . . . [defendant], Jeremiah L. Manning, had his lease changed by adding the figure ‘8’ after ‘1937’ in the first line of said agreement marked 'A’ and that the copy retained and held by the . . . [plaintiff], George Moran, was also changed in a similar manner; meaning and intending that the date in the new agreement should now read 'first day of August, 1938/ ” and that the defendants “John Francis Manning, and Sarah Ruth Willard, knew of said agreement and option and also of renewal of same; that they ratified and confirmed both of said instruments.”
The bill alleges that the plaintiff “lived up to and complied with all terms of said agreement, in copy annexed marked ‘A’, and further had arranged for and desired to and still desires to purchase said land under the terms and conditions as agreed upon” therein. The bill alleges also that the defendants Jeremiah L. Manning, John Francis Manning and Sarah Euth Willard, with full knowledge of the lease, “sold, transferred and conveyed said land” on
The plaintiff prays that the defendant Union Motor Sales, Inc., be enjoined from using or occupying said land and be enjoined from ejecting the plaintiff therefrom, that the defendant John Kolligian be similarly enjoined and also enjoined from " transíering, conveying, encumbering or in any other way, effecting [sic] the said real estate,” that the plaintiff’s rights in the land be established and the defendants be ordered to execute the necessary papers to convey it to the plaintiff, and for other relief specifically described and for general relief.
The defendants filed a plea in bar alleging that "the alleged lease by and under which the plaintiff claims his cause of action arises, was, if in existence, made by one who was without authority, and was therefore illegal and void.” This plea, according to the record, was "sustained after hearing.” A final decree was entered reciting that the "cause came on to be heard . . . upon the plea in bar of the defendants and was argued by counsel,” and ordering and decreeing “that the bill be and hereby is dismissed.” The plaintiff appealed both from the decree sustaining the plea and from the decree dismissing the bill.
First. It is argued by the defendants that the plea sets up two defences: (a) the nonexistence of the lease relied on by the plaintiff, and (b) that it was "made by one who was without authority.” Since it does not appear that at
Second. The question remains, however, whether the bill of complaint was dismissed rightly. It is provided by Rule 28 of the Superior Court (1932) that “If, upon an issue on a plea, the facts pleaded be determined for the defendant, they shall avail him only as far as in law and equity .they ought to avail him.” It is apparent from the terms of the decree whereby the bill was dismissed that it was dismissed solely on the ground that the plea was sustained. The question arises, therefore, whether in the light of the facts determined at the hearing on the plea the bill should have been dismissed, or, on the other hand, the plaintiff should be permitted to go forward with the suit, subject to the determination of facts so made.
The original agreement, according to the allegations of the bill of complaint, as appears from the alleged copy of the agreement attached to the bill, was under seal. See Alfano v. Donnelly, 285 Mass. 554, 556. It purported to be the personal undertaking of Jeremiah L. Manning. It did not purport to bind him in his capacity as administrator of the estate of Mary E. Flagg, though he signed the agreement as such administrator. In view of the language in the body of the instrument, the words added to the signature of Jeremiah L. Manning naturally might be construed as merely descriptio personae and the signature as that of Jeremiah L. Manning in his own behalf. But whether the agreement was that of Jeremiah L. Manning as an individual or as administrator it did not purport to bind his cotenants. It was not made in their names. Doubtless if the agreement had not been under seal it
Even if we assume, as we do not decide, that, on the allegations of the bill the defendant Jeremiah L. Manning was bound by the extension of the agreement, on those allegations the other cotenants were not bound by such extension on the ground of ratification thereof by them. On the allegations of the bill the extension was effected by changing the original instrument in pursuance of an agreement between the plaintiff and the defendant Jeremiah L. Manning, and the other cotenants “ratified and confirmed both . . . instruments.” And the plaintiff relies on the original instrument as so modified — an agreement under seal. The principles already stated are applicable to this agreement as extended, and in accordance with these principles the cotenants, other than Jeremiah L. Manning, were not bound by the extended agreement on the ground of ratification.
The bill, therefore, cannot be maintained for specific performance. And the judge was not required to retain the bill for assessment of damages against the defendant
Decree sustaining the plea affirmed.
Decree dismissing the bill affirmed.