302 Mass. 84 | Mass. | 1938
This is an action of contract which was tried to a jury. The jury returned a verdict for the-plaintiff in the sum of $885.25 and for the defendant on her declaration in set-off in the sum of $87.15. The plaintiff’s declaration is in two counts. The first count contained substantially the following allegations: Albert G. Titus died intestate, leaving as his heirs at law the plaintiff, his widow, and the defendant, his adopted daughter. The plaintiff was appointed administratrix of his estate, and after qualifying as such she had numerous conversations with the defendant regarding the real estate situated at 48 Old Colony Road, Chestnut Hill, in this Commonwealth, which had been owned by the deceased. The plaintiff and the defendant discussed the matter of taxes, mortgages and other ex
During the course of the trial, subject to the defendant’s exceptions, evidence was introduced of a payment of $66.50 made by the plaintiff in satisfaction of a tax on the furnishings in the house at. 48 Old Colony Road, which furnishings were assessed on January 1, 1934, as the property of the plaintiff’s husband, who died January 31, 1934. The defendant contends that the evidence relating to the payment of this tax was improperly admitted for the reason that under the allegations of the plaintiff’s declaration she is limited to recovery for payments made by her which were charges on the real estate involved, and that evidence of payments on account of the personal property contained therein was outside the scope of and at variance with the pleadings.
While it is alleged in the first count of the plaintiff’s declaration that the parties had numerous conversations regarding “the real estate ... at #48 Old Colony Road,” we think that allegation cannot be taken to be more than a statement of the general type of those conversations, and that the scope of the declaration must depend on the words which express the agreement that was reached between the parties, namely, that the plaintiff agreed to "pay all taxes, mortgages, and other expenses as they became due on said property [at 48 Old Colony Road] and the defendant agreed to reimburse the plaintiff for two thirds of the amount so paid on said property.” There was evidence from which the jury could have found that such was the agreement.
As the evidence relative to the payment of this tax was properly admitted, its competency was not affected by the subsequent testimony of the plaintiff to the effect that, at some time not indicated in the record, she claimed the personal property upon which the tax was assessed as her own and that her claim was allowed. There was evidence that the personal property in question was assessed to the intestate as the owner shortly before his death. The question of ownership as thus presented was one of fact for the jury, and we cannot say as matter of law that in the determination of this fact there was error. Hammond v. Wadhams, 5 Mass. 353, 354. Larson v. Boston Elevated Railway, 212 Mass. 262, 267. Kelleher v. Newburyport, 227 Mass. 462, 465. Mahoney v. Wilson, 260 Mass. 412, 414. See Blackman v. Coffin, 300 Mass. 432, 437.
Exceptions overruled.