Wheeler v. Wheeler

111 Mass. 247 | Mass. | 1872

Ames, J.

Upon the case as presented by the plaintiff in his declaration, he is not confined, in seeking his remedy, to the equity jurisdiction of the court, but may properly resort to an action at law. The business which he undertook to do was a matter in which he and the other parties to the arrangement were jointly and equally interested. But his claim is that the contract which he made with those parties was several and not joint. His case, as he presents it, is that under that arrangement he went on for the period of about twelve years, advancing large sums of money in the payment of debts and taxes chargeable to their joint inheritance, and also in the general maintenance and support of the entire family of their deceased father; and that it was a part of that arrangement that the entire amount of expenses so incurred should be apportioned among the four children, he paying one fourth part, and charging one fourth part to each of the others. If he can prove that such was the substance of the agreement, it is difficult to see why he .cannot maintain the present action against the defendant for her proportion.

The fact that the subject matter was one in which the parties to the suit, and other persons also, were jointly interested, and that to some extent the arrangement related to real estate in which they and others were tenants in common, is not decisive against the plaintiff’s right. Persons who stand in such relations to each other may modify their relative common law rights by express agreement. Thus where one tenant in common has expended money in repairs upon the common property, with the consent of his co-tenant, he may recover of his co-tenant a just contribution. Gwinneth v. Thompson, 9 Pick. 31. Converse v. Ferre, 11 Mass. 325. In the case of copartners, neither a settlement of the accounts, nor an express promise to pay, need be proved, where the suit is assumpsit for the final balance. Williams v. Henshaw, 11 Pick. 79. Brigham v. Eveleth, 9 Mass. 538. Jones v. Harraden, Ib. 540 note. Bond v. Hayes, 12 Mass. 34. Fanning v. Chadwick, 3 Pick. 420. Brinley v. Kupfer, 6 Pick. 179. Shepard v. Richards, 2 Gray, 424. In Stiles v. Campbell, 11 Mass. 321, two persons had made a purchase of a quantity of merchandise, with an agreement to share the profits, and upon a sale by one of them of the property, as if on his separate account, it was held that the other could recover his share of the profits in an action of assumpsit, although the defendant objected that the matter was a joint transaction in the nature of a partnership.

The suggestion that the rights of the various parties in interest cannot be settled without a multiplicity of suits appears to be unfounded, as the claim is that the whole of the business was done by the-plaintiff upon a separate contract with each of the other parties. The alleged complexity of the accounts justified the appointment of an auditor, but furnishes no sufficient reason against supporting the action.

We see no sufficient reason for turning the plaintiff over to equity jurisdiction, and must therefore order that

The case stand for trial.