321 Mass. 195 | Mass. | 1947
These actions were originally brought by Jabez Stetson and Charles E. Stetson, brothers, to recover from the estate of a third brother, Lincoln Stetson, balances alleged to be due for wages earned by them respectively over a long period of years during which they were employed by Lincoln as farm laborers and cattle drovers in connection with his farms in Randolph and Abington.
The consolidated bill of exceptions states that the sole issue presented “is whether the allegations of fraud . . . and the evidence introduced by the plaintiffs in support of these allegations was such as to avoid the operation of the statute of limitations.” We address ourselves to the issue so defined.
From statements of facts in the bilf of exceptions, findings of an auditor not contradicted at the trial, and evidence at the trial the following facts are established or could be found: For more than fifty years the defendant’s testator, Lincoln Stetson, operated one or more farms and engaged in the business of trading cattle. He was a successful business man, employing during the greater part of the time “a large number of men.” Jabez and Charles were respectively ten and fourteen years younger than Lincoln. Neither Jabez nor Charles could read or write, and Charles “was of limited mentality” and was “a farm hand of mediocre value.” Lincoln employed Jabez in J 901 and Charles in 1903. Both worked for Lincoln until his death in 1941. Jabez was to receive $12 a week “and found” (changed to $20 a week in 1920), and $5 additional for each trip to Brighton with cattle. Charles was to receive $18 -a month “and found.” Early in the employment of each of his brothers Lincoln Stetson began withholding a portion of the wages of each upon an agreement with each to deposit
There was evidence from which these additional facts could be found: On one occasion about 1907 or 1908 when Jabez asked Lincoln for money, Lincoln replied, “I’m putting that money away and taking it out each week and when the house is paid for you own it.” The house referred to was one owned by Lincoln and occupied by Jabez, which Jabez contended was to be conveyed to him when paid for out of withheld wages. On another occasion Lincoln told Jabez that Lincoln had the deeds to the house and would take care of them until the house was paid for. On another occasion Lincoln said to Jabez, “you will never have to worry. I am taking care of you fellows.” At one time when Lincoln gave Charles fifty cents Lincoln said to the witness, “I will take care of his money. You see he don’t know how to take care of his own money and I will take care of it for him.” The plaintiff Charles Stetson testified in his own behalf. His appearance “warranted the inference that while strong physically, he was of limited mentality.” He testified that Lincoln paid him fifty cents or SI a week of his wages and told him that he was putting the rest of his money in a Randolph bank. There was further testimony that Lincoln had said to different witnesses that he was keeping part of Jabez’s wages to pay for the house; that he was putting part of Charles’s pay away in the bank to take care of him when he got old; and that he was putting away in a bank money withheld from the wages of Jabez and Charles “for their old age when they could not work.”
With these facts and this evidence in mind, we turn to the application of the statute of limitations. Each time, weekly and monthly, when wages were withheld by Lincoln
It is true that a cause of action is not concealed from one who has knowledge of the facts that create it. Tabolsky v. Crandon, 259 Mass. 32. Maloney v. Brackett, 275 Mass. 479, 484. But though Jabez and Charles had knowledge that wages were payable at the stated intervals and that portions, of them were being withheld, they had no knowledge that Lincoln’s obligation to pay the portions withheld into a bank had not been discharged as agreed. They were therefore ignorant that causes of action existed for the unpaid portions. It is also true that ordinarily mere silence is not a fraudulent concealment, and that there must be something in the nature of positive acts with intent to deceive. Manufacturers’ National Bank v. Perry, 144 Mass. 313. O’Brien v. McSherry, 222 Mass. 147. Connelly v. Bartlett, 286 Mass. 311, 318. Norwood Trust Co. v. Twenty-Four Federal Street Corp. 295 Mass. 234, 237. But this statement is subject to
The defendant argues that there was error in the instructions to the jury. We think exceptions to the charge are not open in view of the lhnitation of the issues contained in the bill of exceptions itself and quoted early in this opinion.
We do not imply that there would be any merit in these exceptions if they were open.
Exceptions overruled.
Certain sums not due for wages were originally included in the declarations in counts thatlhave since been disposed of.