Berman v. Coakley

• Decision Date: 14 October 1926
• Citation: 153 N.E. 463,257 Mass. 159
• Parties: BERMAN v. COAKLEY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

257 Mass. 159

153 N.E. 463

BERMAN

v.COAKLEY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Oct. 14, 1926.

Appeal from Supreme Judicial Court, Suffolk County.

Suit in equity by Nyer Berman against Daniel H. Coakley and others for accounting for moneys paid to named defendant as plaintiff's attorney. From an interlocutory order and decree, and final decree dismissing bill, plaintiff appeals. Affirmed.W. H. Garland, of Boston, for appellant.

T. H. Mahoney and P. J. Delaney, of Bostion, for appellee Coakley.

RUGG, C. J.

This is a suit in equity by a client against one who formerly was his attorney for an accounting as to sums of money paid by the plaintiff to the defendant as his attorney because, as alleged, the latter conspired with one Corcoran to cheat and defraud the plaintiff by suppressing or feigning to suppress a charge made, as a part of the conspiracy, against the plaintiff to the district attorney by a husband to the effect that the plaintiff as proprietor of a hotel had suffered the wife of the complaining husband to resort to the plaintiff's hotel for purposes of unlawful sexual intercourse. The allegations of the bill are set out more at length in 243 Mass. 348, 137 N. E. 667, 26 A. L. R. 92, when the case was here upon the bill and demurrer. It there was held that the bill set out a cause of action in equity and the demurrer was overruled. The case then came on for trial on the merits. The single justice made in writing findings of facts. The plaintiff's appeal from a final decree dismissing the bill brings the case here.

The findings of the judge were filed voluntarily in accordance with the practice approved in Cohen v. Nagel, 190 Mass. 4, 5, 76 N. E. 276,2 L. R. A. (N. S.) 964,5 Ann. Cas. 553. They have the same effect as a ‘report of the material facts found by’ the trial judge pursuant to G. L. c. 214, § 23. Howe v. Howe, 199 Mass. 598, 601, 85 N. E. 945,127 Am. St. Rep. 516;Taylor v. Jones, 242 Mass. 210, 216, 136 N. E. 382.

The plaintiff, however, requested a finding of material facts in accordance with G. L. c. 214, § 23. This request included subsidiary requests for the findings of certain specified facts. This request was filed within four days after the entry of the final decree, as required by said section 23, because, although five calendar days had elapsed one of these days was a Sunday, which is excluded in the computation of a time less than a week. Stevenson v. Donnelly, 221 Mass. 161, 163, 108 N. E. 926, Ann. Cas. 1917E, 932. In response to this request the single justice referred to his findings previously filed as a report of the material facts and declined to make the findings specified in the request. In this there was no error. Such a report ‘is in the nature of an extension of the record in the form of a statement in writing of what was in the mind of the judge when his decision was made.’ Worcester v. Lakeside Mfg. Co., 174 Mass. 299, 300, 54 N. E. 833. This is not a report of the evidence. It merely states certain facts material in the thought of the judge and commonly also his decision.

The only question presented on this aspect of the case is whether the specific facts stated can stand, the evidence being reported, and are inconsistent with the general conclusion reached. Cleveland v. Hampden Savings Bank, 182 Mass. 110, 65 N. E. 27. The report contemplated by the statute being of this nature, plainly the trial court cannot be required to make findings of specified facts. While there is no impropriety in appropriate instances in making requests for such findings (Matthews v. Dinner, 237 Mass. 153, 129 N. E. 394), a trial judge in conformity to the statute reports only facts material to the decision in conditions like the present.

The case is before us on an appeal from a final decree upon the findings of material facts made by the single justice with a full report of all the evidence. The evidence was principally the testimony of numerous witnesses given orally in the presence of the single justice. The duty of this court in these circumstances is settled and has been stated frequently. The evidence must be examined and the case decided according to the judgment of this court as to the facts, giving due weight to the findings of the judge; but his decision will not be overturned unless plainly wrong. The presumption in favor of the correctness of the decree appealed from and of the findings of fact made is peculiarly strong, because ‘the judge who hears the testimony from the mouths of the witnesses * * * has better means of weighing the credibility of their conflicting statements than the full court can possibly have upon the printed record of their testimony.’ Reed v. Reed, 114 Mass. 372, 373;Lindsey v. Bird, 193 Mass. 200, 201, 79 N. E. 263;Sawyer v. Clark, 214 Mass. 124, 126, 100 N. E. 1079;Rubenstein v. Lottow, 220 Mass. 156, 165, 107 N. E. 718;Corkery v. Dorsey, 223 Mass. 97, 100, 111 N. E. 795;Glazier v. Everett, 224 Mass. 184, 186, 112 N. E. 1009;Martell v. Dorey, 235 Mass. 35, 40, 126 N. E. 354. The question to be decided is not what the opinion of the full court might be as to the facts on the printed record alone, but whether it can rightly be said that the findings made by the judge who saw the witnesses and heard them testify is plainly wrong. That is the problem raised on the present record.

The parties are in agreement to the effect that two payments aggregating $50,000 were made to the defendant in his capacity as attorney for the plaintiff. Upon all other vital points in issue the testimony is in great conflict. The further findings of the single justice in brief are that the plaintiff's hotel, in which the plaintiff was owner of a two-thirds interest and was an active manager and on the premises during a large part of every day, was a liquor store and a house of prostitution and so bad as to merit the characterizations, ‘this sink of iniquity’ and ‘gold mine.’ Two hotel registers were kept: One in sight, where were registered the names only of such numbers of persons as might be thought lawfully to resort to the hotel to hire rooms in the ordinary course of a hotel business; and the other, called the ‘underneath register’ because kept underneath the desk or counter in which were entered names of persons in such numbers for each day covering long periods of time as to demonstrate that the rooms must have been used for purposes of prostitution. Of these facts the plaintiff had full knowledge. The district attorney sent for and obtained this ‘underneath register’ in October, 1916, and thus was in possession of evidence of a nature to form the basis of proceedings not only of a criminal nature but also such as might well result in the revocation of the licenses to sell liquor and to be an innholder. The plaintiff immediately consulted the defendant as attorney. A conference was held in the office of the latter. The plaintiff, his partner, another person interested in the prosperity of the hotel business, the defendant and one Corcoran were present. Corcoran, who then was district attorney for the northern district, pretending to represent the injured husband,...