Berenson v. French

Citation159 N.E. 909,262 Mass. 247
Decision Date10 January 1928
CourtUnited States State Supreme Judicial Court of Massachusetts


Appeal from Superior Court, Suffolk County.

Bill in equity by Arthur Berenson against Asa P. French for an injunction and to require defendant to deliver a release to plaintiff. From an interlocutory decree adjudging defendant's plea to be sufficient in law and from an order denying plaintiff's motion for reargument and from a final decree for defendant, plaintiff appeals. Interlocutory decree, order, and final decree affirmed.

C. F. Choate, Jr., of Boston, and R. Wait, of Medford, for appellant.

E. O. Proctor, of Boston, for appellee.


It appears from the allegations of the bill as amended that the plaintiff, acting as counsel for certain minority stockholders of the New York, New Haven & Hartford Railroad Company, brought a suit in equity in the District Court of the United States for the Southern District of New York against some of the former directors of the company to recover moneys alleged to be due the company because of their personal misconduct. The plaintiff, in conducting the litigation, was assisted by the defendant, also a member of the bar. During the proceedings engotiations for a settlement were begun and through the sole efforts of the plaintiff a large amount of money was obtained in settlement from the defendants for the benefit of the company. While negotiations were pending, and with knowledge that a settlement would be effected, the plaintiff and the defendant-together with other persons, all counsel associated with them-entered into an agreement under seal on December 20, 1920, which, omitting the preamble, described the litigation and the services of the plaintiff and his associate counsel, including the defendant; and the expectation of the parties that $2,500,000 was to be received in settlement of the litigation, and set forth the following agreements:

(1) The said Arthur Berenson shall prepare and file with the court a petition for the allowance of counsel fees, disbursements, costs, expenses and any other proper allowances, which petition shall be joined in, assented to or otherwise acted upon as may be required, by the other parties hereto and the parties agree that said petition shall be for a sum not less than one-third of the amount of the settlement. In the event that the parties are required by the rules of court or otherwise by law to make separate applications for the aforesaid allowances, such applications shall be made by each party and any sums allowed by the court shall be pooled by all the parties and placed in a common fund upon the agreements hereinafter set forth. The parties agree to render all necessary assistance in the preparation and presentation of the aforesaid petition or petitions.

(2) The parties agree to and do hereby constitute and appoint Arthur Berenson their true and lawful attorney for the purpose of collecting the allowance or allowances and for that purpose he may execute, sign, seal, acknowledge and deliver for and in their behalf or any of them due acquittances, releases or any other written instrument under seal or otherwise as may be required.

(3) Out of the allowances which may be made by the court and when the same shall have been received by Arthur Berenson, he shall pay all disbursements, expenses, charges and any other claims and any sum or sums which the court shall by its decree require and there shall also be paid the following sums in full and final payment for all services rendered by them or each of them as aforesaid, to wit:

Asa P. French, twenty-five thousand dollars.

Francis P. Garland, twenty-five thousand dollars.

Frank M. Swacker, thirty-five thousand dollars.

‘The said Arthur Berenson shall pay Lawrence Berenson and Bernard Berenson such sums as shall be agreed upon by them and said Lawrence Berenson and Bernard Berenson do hereby release said French, Garland and Swacker of and from all claims whatsoever. Upon the payment to the parties hereto of all the sums which shall or may be due them hereunder they shall execute and deliver to Arthur Berenson releases in full of all damands.

(4) In the event that the said Arthur Berenson shall deem the said allowance or allowances unsatisfactory in amount or otherwise, the said French, Garland and Swacker shall not receive the aforesaid sums but they shall meet and determine what amounts be paid to said French, Garland and Swacker, having regard to all the recitals and agreements herein contained, the amount which the court has allowed and all of the surrounding circumstances and facts and if the parties cannot then agree, the matter shall be referred to Judge Hough of the United States District Court or to any other person whom he shall appoint as an arbitrator, the decision of either to be final and binding upon all parties hereto as to the amount or amounts which each of them shall receive.

(5) In the event that any suit or suits shall be brought against any or all of the parties hereto, the parties agree that they will render all necessary assistance and aid in the defense of said suit or suits.

(6) The parties agree to do all in their power to expedite the payment of the aforesaid fund and to give all aid toward that end.’

It is alleged that the plaintiff, having received the money, paid to the defendant $25,000 which was received and retained by him in full and final payment for all services rendered. But the defendant declined to execute and deliver the release as provided in the agreement, and on April 2, 1923, brought an action at law to recover compensation for services claimed to have been rendered in excess of the amount received for which he had not been paid. The plaintiff prays that the prosecution of that action be enjoined and that the defendant be ordered to execute and deliver to the plaintiff a release in accordance with the agreement of settlement.

[1][2] The original bill was filed June 16, 1923, and the amendment to the bill was allowed March 5, 1924. On September 19, 1924, the defendant filed the following plea:

‘The respondent for his plea to the petition as amended in the above-entitled cause alleges that the petitioner has for a good and valuable consideration expressly waived any right to demand or receive such release.’

The plea was a pure affirmative plea, the object being to defeat the bill without resort to an answer, and no replication having been filed, the facts stated in the plea were admitted, but their sufficiency as matter of law to bar recovery was denied. Cole v. Wells, 224 Mass. 504, 512, 113 N. E. 189;Farley v. Kittson, 120 U. S. 303, 7 S. Ct. 534, 30 L. Ed. 684. The plaintiff, thereupon, moved that the defendant be ordered to specify up what he relied as acts or statements constituting a waiver and upon what he relied as a consideration for the alleged waiver. The motion was allowed without any objection by the defendant who, in compliance therewith, filed specifications stating the acts relied on as constituting a waiver and the consideration therefor. The plea as amplified by the specifications was the plea on which the defendant relied to defeat the bill, and the interlocutory decree, adjudging the plea to be sufficient in law, was entered rightly. Harrington v. Harrington, 107 Mass. 329, 334;Dorsey v. Corkery, 227 Mass. 498, 500, 116 N. E. 870. The case thereafter came on for hearing on the merits, the court sustained the plea, and, a decree having been entered dismissing the bill, the plaintiff appealed.

[3] The judge was not required to make findings of fact as requested by the plaintiff, and his failure to do so is not reviewable. Warfield v. Adams, 215 Mass. 506, 102 N. E. 706.

[4][5] The burden of proving the allegations of the plea-that the plaintiff had waived his right to demand and receive a release from the defendant and that the waiver was based on good consideration-rested on the defendant. Torrey v. Adams, 254 Mass. 22, 149 N. E. 618, 43 A. L. R. 1447. It is argued by the plaintiff that on the evidence, which is fully reported, the defendant failed to sustain the plea and his request for a ruling to that effect should have been given. The plaintiff also contends that evidence, introduced subject to his exception by the defendant, tending to show that the plaintiff acted fraudulently should have been excluded because no issue of fraud was raised by the plea. While the issue raised must be confined to a single point, facts may be proved having a tendency to establish it; even if it is the issue only that must be single, a defense offered by way of a plea consists of a variety of circumstances, and if they all tend to a single point, the plea is good. Chapin v. Coleman, 11 Pick. 331;Crease v. Babcock, 10 Metc. 525, 543;Rhode Island v. Massachusetts, 14 Pet. 210, 259, 10 L. Ed. 423; Rowe v. Teed, 15 Ves. 372. Beames, Pleas in Equity, 10.

[6] The questions of waiver and of consideration were questions of fact. Farlow v. Ellis, 15 Gray, 229;Suburban Land Co., Inc., v. Brown, 237 Mass. 166, 168, 129 N. E. 291;Hastings v. Lovejoy, 140 Mass. 261, 2 N. E. 776,54 Am. Rep. 462. And in reviewing evidence the conclusions of the trial judge will not be disturbed unless plainly wrong. Revere Water Co. v. Winthrop, 192 Mass. 455, 459, 78 N. E. 497.

[7] We are satisfied on an examination of the record that the judge's findings of fact are well grounded. The suit against the directors had been pending for several years during which various interlocutory questions were considered by the court, and early in December, 1920, a peremptory order was entered assigning the case for trial on the merits in the following February. The plaintiff had retained the defendant, Mr. Francis P. Garland and Mr. Frank M. Swacker, all of whom were counselors at law, to assist him in the preparation and prosecution of the case which never came to trial because of a settlement negotiated by the plaintiff with Mr....

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