Creed v. Creed

Massachusetts Supreme Judicial Court

Creed v. Creed

36 N.E. 749, 161 Mass. 107, 1894 Mass. LEXIS 137

CourtMassachusetts Supreme Judicial Court

DecidedMarch 23, 1894

StatusPublished

Cited by3 cases

This text of 36 N.E. 749 (Creed v. Creed) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Creed v. Creed, 36 N.E. 749, 161 Mass. 107, 1894 Mass. LEXIS 137 (Mass. 1894).

Pincite

Opinion

Barker, J.

1. The plaintiff bought the stable and mortgaged it to one Ellis, and allowed the defendants to run it. He contended at the trial that he bought and paid for it at the defendants’ request, and for their use, and they contended that he bought it, not at their request, but substantially as a present for them.

The mortgage was in course of foreclosure by sale, and Mr. Lane was the attorney who represented the mortgagee in the foreclosure proceedings. The plaintiff could not himself raise the money to pay the mortgage, and told the defendants that, if they could find some one who would raise the money and pay off the mortgage, he would release to them all claims to the stable, and they thereupon raised the money and paid off the mortgage and the plaintiff gave them a bill of sale of the stable releasing his interest therein to the defendants.

The plaintiff testified that he sent Mr. Pearse, an attorney, to Norwood “ on business relative to this transaction,” to attend to his (plaintiff’s) claim, to protect the defendants, and to raise the money if he could. But it does not appear that the statements made by Pearse to Lane, that the plaintiff was relinquishing all right to the stable, and the defendants by reason of that fact were making a thousand dollars out of the plaintiff’s action, were material to the negotiations between Lane and Pearse, and they must be treated as matters of conversation outside of the scope of those negotiations. The statements were not made to or acted upon by the defendants, and could not be binding on the plaintiff as to them, and were not admissible in their favor.

2. Whether the defendants had been summoned or were chargeable in another action as trustees in respect of the money here sued for, was immaterial to the question whether the plaintiff was entitled to a verdict in the case at bar. This case [109]*109must proceed so far as to ascertain what sum, if any, is due from the defendants; and it is not to be delayed on account of the trustee process, unless continued for judgment in accordance with the statute. Pub. Sts. c. 183, §§ 40-42.

Exceptions overruled.

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Barker, J.

1. The plaintiff bought the stable and mortgaged it to one Ellis, and allowed the defendants to run it. He contended at the trial that he bought and paid for it at the defendants’ request, and for their use, and they contended that he bought it, not at their request, but substantially as a present for them.

The mortgage was in course of foreclosure by sale, and Mr. Lane was the attorney who represented the mortgagee in the foreclosure proceedings. The plaintiff could not himself raise the money to pay the mortgage, and told the defendants that, if they could find some one who would raise the money and pay off the mortgage, he would release to them all claims to the stable, and they thereupon raised the money and paid off the mortgage and the plaintiff gave them a bill of sale of the stable releasing his interest therein to the defendants.

The plaintiff testified that he sent Mr. Pearse, an attorney, to Norwood “ on business relative to this transaction,” to attend to his (plaintiff’s) claim, to protect the defendants, and to raise the money if he could. But it does not appear that the statements made by Pearse to Lane, that the plaintiff was relinquishing all right to the stable, and the defendants by reason of that fact were making a thousand dollars out of the plaintiff’s action, were material to the negotiations between Lane and Pearse, and they must be treated as matters of conversation outside of the scope of those negotiations. The statements were not made to or acted upon by the defendants, and could not be binding on the plaintiff as to them, and were not admissible in their favor.

2. Whether the defendants had been summoned or were chargeable in another action as trustees in respect of the money here sued for, was immaterial to the question whether the plaintiff was entitled to a verdict in the case at bar. This case [109]*109must proceed so far as to ascertain what sum, if any, is due from the defendants; and it is not to be delayed on account of the trustee process, unless continued for judgment in accordance with the statute. Pub. Sts. c. 183, §§ 40-42.

Exceptions overruled.

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Bluebook (online)

36 N.E. 749, 161 Mass. 107, 1894 Mass. LEXIS 137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/creed-v-creed-mass-1894.

Opinion

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