Beacon Oil Co. v. Maniatis

• Decision Date: 27 December 1933
• Citation: 284 Mass. 574,188 N.E. 386
• Parties: BEACON OIL CO. v. MANIATIS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

284 Mass. 574

188 N.E. 386

BEACON OIL CO.

v.MANIATIS et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Dec. 27, 1933.

Appeal from Superior Court, Middlesex County; Pinanski, Judge.

Suit by the Beacon Oil Company against Alexander Maniatis and St. Gray and others. Decree for plaintiff, and defendant last-named appeals.

Affirmed.

F. V. Terry, of Newtonville, for plaintiff.

J. W. Milne, of Boston, for defendant Maniatis.

H. C. Gow and M. K. Curnane, both of Malden, for defendant Gray.

LUMMUS, Justice.

This bill in equity is brought by a judgment creditor of the defendant Maniatis, to reach and apply his interest in a partnership, composed of Maniatis and the defendant Gray, engaged in the gasoline filling station business, and also the interest of Maniatis in a leasehold which stands, on the face of the assignment of the lease, in the name of Gray, but which, the plaintiff alleges, is held for the benefit of the partnership. The defendant Gray appeals from a ‘final decree’ establishing the plaintiff's claim against Maniatis with costs, and ordering execution therefor; declaring that Maniatis and Gray are equal partners in the business and the leasehold; and establishing that by the restraining order and the continuance thereof in force ‘the plaintiff has a lien upon the aforesaid half interest of the defendant Maniatis in said lease.’ Although the terms of the continuance in force of the restraining order are not in the record, we assume that the language of the final decree refers to action which in substance amounted to a preliminary injunction. G. L. (Ter. Ed.) c. 214, § 9; Stathopoulos v. Reeksting, 252 Mass. 542, 147 N. E. 853;Schainmann v. Brainard (C. C. A.) 8 F.(2d) 11;Davis v. Hayden (C. C. A.) 238 F. 734, 736, 737.

The final decree was based upon the report of a master, whose findings of fact are final, since in the absence of the evidence we have no means of revising them. From the beginning of the business, which Maniatis conducted with one Patchiavos, one Allen, and Gray as successive equal partners, the leasehold stood in the name of the partner other than Maniatis, although the rent was paid out of partnership funds. The lease was originally taken in the name of Patchiavos alone as security for a loan from him to his partner Maniatis of money which went to the lessor as the consideration for the transaction out of which the lease resulted. Thus the money paid was that of Maniatis, to the extent at least of his half interest in the partnership, and that is enough for this case. Howe v. Howe, 199 Mass. 598, 601, 85 N. E. 945,127 Am. St. Rep. 516;Davis v. Downer, 210 Mass. 573, 575, 97 N. E. 90;McDonald v. Conway, 254 Mass. 429, 433, 150 N. E. 200. Whether the loan was paid does not appear, but there is no finding that the claim was assigned to Allen or Gray with the lease. Moreover, Maniatis and Patchiavos were equal partners when the lease was taken (Lurie v. Pinanski, 215 Mass. 229, 102 N. E. 629;Deutschman v. Dwyer, 223 Mass. 261, 111 N. E. 877;Marston v. Marston, 277 Mass. 129, 177 N. E. 862), and the statute of frauds was not pleaded (Livingstone v. Murphy, 187 Mass. 315, 318, 72 N. E. 1012,105 Am. St. Rep. 400;Burke v. McLaughlin, 246 Mass. 533, 538, 141 N. E. 601;Bank of Commerce & Trust Co. v. Schooner, 263 Mass. 199, 204, 160 N. E. 790). Both Allen and his assignee of the lease and successor in the partnership, Gray, ‘were aware that Maniatis claimed a half interest in the lease throughout their partnership and seemingly acquiesced in it’ until a short time before this bill was brought, when Gray began to claim sole ownership. When Gray was about to become a partner and to take an assignment of the lease, and Allen represented that he was the sole owner of the leasehold, it could be found that the silence of Maniatis did not estop him, in view of the finding just quoted. The master found that Maniatis had a half interest in the leasehold. Upon these findings, the defendant Gray has no just reason to complain of the decree. The requests for rulings which the defendant Gray presented to the master, so far as they are material, are disposed of by what has already been said.

The decree appealed from omits to provide the customary machinery for applying to the debt the property which the bill seeks to reach. See Rolfe v. Clarke, 224 Mass. 407, 412, 113 N. E. 182;Levey v. Nason, 279 Mass. 268, 181 N. E. 193. We cannot correct it in favor of the plaintiff upon the appeal of the defendant Gray. Kilkus v. Shakman, 254 Mass. 274, 280, 150 N. E. 186. It is a final decree, not only because it purports to be final (Kingsley v. Fall River, 280 Mass. 395,...