250 Mass. 537 | Mass. | 1925
The plaintiffs’ exceptions to rulings on evidence not having been argued, are treated as waived, and the only question is, whether the verdict for the defendant was ordered rightly. It owns safe deposit vaults containing safes, each with a separate number and lock, which under the name of “State Street Safe Deposit Vaults” are rented to customers, who receive keys that cannot be used without the application of a pass key by the defendant. The executors of the will of William Firth, having paid the rent of safe numbered 2185 for one year, were given a receipt dated July 13, 1920, which stated, that the rental was “ subject to the rules endorsed herein, all of which are by it agreed to and accepted.” One of the rules provided, that “ No one but the Renter or his Deputy, to be duly designated in writing on the records of the Vaults, or in case of death or other contingency, his legal representative to have access to .the Safe.” The safe “within a month preceding June 10,1921,” was unlocked by one Amos L. Hatheway, who purloined certain coupon bonds issued by the United States of the face value of $56,000, the property of the estate, which he pledged to secure his own obligations to holders for value without knowledge of the theft or of circumstances which should have put them upon inquiry. See Pratt v. Higginson, 230 Mass. 256. The plaintiffs allege that without their knowledge or assent, and in violation of the contract, the defend
The weight or preponderance of evidence might shift with varying aspects of the trial, but the burden of proof rested on the plaintiffs to maintain the issue presented by the pleadings. Carroll v. Boston Elevated Railway, 200 Mass. 527.
The “ records ” which contained the names of the renters, and of those who were permitted access to the safe, were in the usual course of business kept on cards by Henry H. Hinckley, the defendant’s manager. While the card dated July 13, 1920, a copy of which is marked exhibit five, and signed only by the plaintiff Browne, bears on its face the notation, “Exs. Two to go,” meaning, that two of the executors were to go together when the safe was unlocked, he testified without contradiction, that he knew the words were not then on the card, and there was evidence that they had been inserted June IQ, 1921, at the request of the other two executors, who seem to have become suspicious of Hatheway’s integrity. It is manifest on the testimony of Browne and of his coexecutors West and Smith, that Hatheway, who had acted as counsel for, and had prepared the will of the testator, was retained and employed by the four executors, Browne, West, Smith and Mrs. Firth, as “ the proper person to look after ” the business.. He also on the resignation of Smith on November 20, 1920, was appointed to succeed him, but resigned February 7, 1921, and thereafter Browne, West and Mrs. Firth acted as executors. The meetings of the executors as well as of the trustees under the will were held at his office which was in the defendant’s building, and he was entrusted with the entire management of affairs. By arrangement between themselves none of the executors except Browne could draw'checks on the funds, which also were to be countersigned by Hatheway, who received the moneys, and made deposits in the name of the estate in a national bank and in a trust company. The result was, that Hatheway directed and controlled the settlement of the estate under the supervision of Browne. The executors,
It is plain from the foregoing summary, that the executors knew Hatheway had procured the safe, received a key, and had “ signed something,” which, upon further inquiry by Browne when he was given the receipt of July 13, 1920, would have disclosed the card, exhibit 4, then of record, which in so far as material reads, (written portions being printed in italics):
Name Estate of William Firth
Address A. L.H. 626 Building
No. 2185 Date July 18, 1920
Height
Weight
Age
Complexion
Eyes
Reference O. K. A. L. H.
Signature see back.
It is signed on the back, “ Amos L. Hatheway, Alexander S. Browne, Estate of William Firth by Amos L. Hatheway.”
It is unnecessary to decide whether Hatheway on the relations existing between them and the action taken on July
The conclusion is the same if the receipt, and the records, which are incorporated by express reference, are treated, as the plaintiffs contend, as constituting a contract, which cannot be varied by paroi evidence. Abbott v. Frazier, 240 Mass. 586, 593. Dunbar v. Broomfield, 247 Mass. 372, 384. The case at - bar is plainly distinguishable from DeFriest v. Bradley, 192 Mass. 346, Mears v. Smith, 199 Mass. 319, Glackin v. Bennett, 226 Mass. 316, Goyette v. C. V. Watson Co. 245 Mass. 577, 588, 589. At the time the receipt was given, and payment accepted, Hatheway had been designated in writing on the records as a person who could have access to the safe, and the executors through Browne had knowledge of the rule, and also that Hatheway, having been thus designated, had received and retained a key. It follows under the contract, that he became the plaintiff's deputy. Secoulsky v. Oceanic Steam Navigation Co. 223 Mass. 465, 466.
The entry must be, judgment for the defendant on the verdict.
So ordered.