Dix Lumber Co. v. Gregory

10 Mass. App. Div. 184
CourtMassachusetts District Court, Appellate Division
DecidedAugust 29, 1945
StatusPublished

This text of 10 Mass. App. Div. 184 (Dix Lumber Co. v. Gregory) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dix Lumber Co. v. Gregory, 10 Mass. App. Div. 184 (Mass. Ct. App. 1945).

Opinion

Pettingell, P. J.

Action of contract to recover $223.63 on an account annexed for building material. The answer is a general denial and payment. There was evidence that the building material was ordered by the husband of the defendant ; that the price charged for it was fair and reasonable ; that it was used in the construction of a house built upon land of the defendant; that the construction was under the supervision of the defendant’s husband; and that after the house was built, the defendant and her husband moved into it. It appeared also that the defendant paid for the construction of the house out of funds realized from a mortgage upon the premises and other money which she had received as the result of a fire loss upon the same land.

There was other evidence that the defendant’s husband had told the plaintiff that he owned the land and that the plaintiff did not know that the defendant owned it until just prior to the bringing of this action; that the plaintiff had [185]*185never charged to the defendant the material delivered to the defendant’s house, for which the plaintiff now sues to the defendant, that it never had any account with the defendant.

There was also evidence that the defendant’s husband had many transactions with the plaintiff purchasing building material for other houses erected by him; that at the time that suit was brought the defendant’s husband owed the plaintiff $598.67 for other merchandise sold by the plaintiff to the defendant’s husband on other jobs; that prior to •the bringing of this suit the defendant’s husband filed a voluntary petition in bankruptcy, and that the plaintiff filed and proved a claim against the bankrupt for $822.25 which included the account, the basis of the present suit against the defendant.

There was other evidence that the defendant’s husband had taken a note for work done on another house amounting to $112 which was payable to the plaintiff, the plaintiff agreeing to take the note and credit the proceeds to the account of the husband when collected; and that $300 had already been collected.

At the close of the trial the plaintiff filed the following requests for rulings:

“1. If the premises where the materials supplied were used in the construction of a dwelling house was owned by the defendant and she knew her husband was building the house and thereafter accepted the benefit of the construction, then the court is warranted in finding that the husband was acting as her agent, and she is responsible for the account sued upon. 2. The fact that tire plaintiff charged the material sued for to the defendant’s husband in the first instance does not preclude it from now establishing its claim against this defendant. 3. Upon the evidence in this case the court is warranted in finding that the defendant was the undisclosed principal of her husband. 4. The fact that [186]*186the plaintiff has proved its total claim including the one in question in 'bankruptcy does not preclude it from recovering in this action. 5. Upon the evidence in this ease there is no proof of payment. 6. The evidence in this case does not warrant a finding of payment.”

The trial judge denied all of the plaintiffs requests for rulings and made the following finding of fact:

“I find as a fact that at the time of the commencement of this action that there was no money due the plaintiff from the defendant. In view of tins, finding I deny all of the plaintiff’s requests for rulings.”

The report contains all the evidence material to the questions reported.

This case has been before this Division on an earlier occasion when there was a finding for the defendant. At that time the plaintiff filed four requests for rulings which are identical with the first four filed at this time. This Division held then that it was prejudicial error to deny the rulings filed and ordered a new trial. In the earlier case there was no finding of fact; in this there was a brief finding of fact which has been quoted.

The law in Massachusetts has been definitely cast that if a wife owning real estate- permits her husband to improve it by building upon it and accepts the benefit of the improvement she can be held liable as an undisclosed principal. This is established by a long line of decisions. Raymond v. Crown & Eagle Mills, 2 Met. 319. Westgate v. Munroe, 100 Mass. 227. Day v. Eaton, 119 Mass. 513. Gardner v. Bean, 124 Mass. 347. Lovell v. Williams, 125 Mass. 439. Arnold v. Spurr, 130 Mass. 347. Wheaton v. Trimble, 145 Mass. 345. Jefferds v. Alvard, 151 Mass. 94. Dyer v. Swift, 154 Mass. 159. Beston v. Amadon, 172 Mass. 84. Reid v. Miller, 205 Mass. 80. Maynard v. Fabyan, 267 Mass. [187]*187312. Delano v. Goldstein, 281 Mass. 188. Gustafson v. Gatta, 296 Mass. 404.

The liability of the wife in these cases is not because of a presumption of law but because the evidence warrants an inference of fact favorable to the plaintiff. Westgate v. Munroe, 100 Mass. 227, at 228. Gustafson v. Gatto, 296 Mass. 404, at 406. The fact that the plaintiff has received a payment from the husband, Westgate v. Munroe, supra, or has taken his note, Beston v. Amadon, supra, is not conclusive against the plaintiff, Gustafson v. Gatto, supra. He may sue either or both, although he is entitled to one recovery only. Reid v. Miller, supra. The bringing of an action against the agent is not conclusive of an election unless it is followed to a judgment. Gavin v. Durden Coleman Lumber Co., 229 Mass. 576, at 580; even an entry of judgment upon a default, the creditor being in ignorance of the liability of the principal is not an election to rely upon the agent. Gavin v. Durden Coleman Lumber Co., supra. Proving a claim in bankruptcy against the husband in such ignorance, is not an election. Gardner v. Bean, 124 Mass. 347, at 348. See Restatement, Agency, Vol. I, Ch. 6, Section 203.

In this state of the law it was error to deny the plaintiff’s first and third requested rulings to the effect the evidence warranted a finding for the plaintiff on the ground of the undisclosed agency of the husband. The cases noted above unanimously support the plaintiff’s contentions.

It was error also to deny the plaintiff’s second requested ruling to the effect that the act of the plaintiff in charging the material Sold to the husband does not preclude the plaintiff from establishing its claim against the wife. Gardner v. Bean, 124 Mass. 347, at 348. Dyer v. Swift, 154 Mass. 159, at 162. Reid v. Miller, 205 Mass. 80, at 85, 86. May[188]*188nard v. Fabyan, 267 Mass. 312, at 316. Delano v. Goldstein, 281 Mass. 188, at 189.

It was error, also, to deny the plaintiff’s fourth requested ruling that the plaintiff is not precluded in the present action by having proved its claim in bankruptcy against the defendant’s husband. Gardner v. Bean, 124 Mass. 347, at 348.

The fifth and sixth requests dealt with the matter of payment, the fifth to the effect that there was no proof of payment, and the sixth to the effect that the evidence did not warrant a finding of payment.

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Related

Westgate v. Munroe
100 Mass. 227 (Massachusetts Supreme Judicial Court, 1868)
Day v. Caton
119 Mass. 513 (Massachusetts Supreme Judicial Court, 1876)
Gardner v. Bean
124 Mass. 347 (Massachusetts Supreme Judicial Court, 1878)
Lovell v. Williams
125 Mass. 439 (Massachusetts Supreme Judicial Court, 1878)
Arnold v. Spurr
130 Mass. 347 (Massachusetts Supreme Judicial Court, 1881)
Wheaton v. Trimble
14 N.E. 104 (Massachusetts Supreme Judicial Court, 1887)
Jefferds v. Alvard
23 N.E. 734 (Massachusetts Supreme Judicial Court, 1890)
Dyer v. Swift
28 N.E. 8 (Massachusetts Supreme Judicial Court, 1891)
Beston v. Amadon
51 N.E. 452 (Massachusetts Supreme Judicial Court, 1898)
Reid v. Miller
91 N.E. 223 (Massachusetts Supreme Judicial Court, 1910)
Clarke v. Massachusetts Title Insurance
100 N.E. 1089 (Massachusetts Supreme Judicial Court, 1913)
De Young v. Frank A. Andrews Co.
100 N.E. 1080 (Massachusetts Supreme Judicial Court, 1913)
Gavin v. Durden Coleman Lumber Co.
118 N.E. 897 (Massachusetts Supreme Judicial Court, 1918)
Kaufmann v. Sydeman
146 N.E. 365 (Massachusetts Supreme Judicial Court, 1925)
Maynard v. Fabyan
166 N.E. 629 (Massachusetts Supreme Judicial Court, 1929)
Russell v. Foley
179 N.E. 619 (Massachusetts Supreme Judicial Court, 1932)
Delano v. Goldstein
183 N.E. 146 (Massachusetts Supreme Judicial Court, 1932)
Markiewicz v. Toton
198 N.E. 659 (Massachusetts Supreme Judicial Court, 1935)
Gustafson v. Gatto
6 N.E.2d 385 (Massachusetts Supreme Judicial Court, 1937)
Hoffman v. City of Chelsea
52 N.E.2d 7 (Massachusetts Supreme Judicial Court, 1943)

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Bluebook (online)
10 Mass. App. Div. 184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dix-lumber-co-v-gregory-massdistctapp-1945.