Bourbeau v. Whittaker

• Decision Date: 05 January 1929
• Citation: 164 N.E. 453,265 Mass. 396
• Parties: BOURBEAU et al. v. WHITTAKER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

265 Mass. 396

164 N.E. 453

BOURBEAU et al.

v.WHITTAKER.

Supreme Judicial Court of Massachusetts, Franklin.

Jan. 5, 1929.

Appeal from Superior Court, Franklin County; Henry K. Braley, Acting Chief Justice.

Suit by Uzece Bourbeau and another against Harrison M. Whittaker. From an order recommitting the case to another master after granting plaintiff's motion for leave to amend the bill, plaintiffs appeal. Orders set aside, appeal discharged, and case remanded with directions.Frank J. Lawler, of Greenfield, for appellants.

RUGG, C. J.

This is a suit in equity. The frame of the bill as originally filed set out ownership by the parties of several parcels of real estate subject to certain mortgage incumbrances, and an exchange of these parcels by deeds which, through the fraud of the defendant, failed to express the agreement of the parties to the effect that each as a part of the consideration should assume and pay existing described mortgages upon the parcels conveyed. The prayers were for a reformation of each deed so as to conform to such agreement and for assessment of the damages sustained by the plaintiffs. The answer admitted allegations as to ownership of the several parcels and the mortgage incumbrances thereon, but denied allegations as to fraud. The answer was insufficient under Equity Rule 7 (1926), Corkum v. Clark (Mass.) 161 N. E. 912, and cases there collected. But no objection was taken on this point. The case was sent to a master. His findings were to the effect that the agreement was as alleged in the bill, that the deeds did not express that agreement in the respect that the grantees were to assume and pay as part of the consideration the specified mortgage incumbrances on the parcels conveyed, that this omission arose through the mutual mistake of all parties to the transaction action in good faith, and that the defendant had made no misrepresentations and had committed no fraud. A finding was made as to damages sustained by the plaintiffs. Upon the filing of the master's report, the plaintiffs moved that it be confirmed, and the defendant, that the bill be dismissed because the ground of relief alleged was fraud of the defendant and the finding of the master was that there was no fraud. Thereupon no action by the court was taken touching the master's report, although there ought to have been a decree concerning it. American Circular Loom Co. v. Wilson, 198 Mass. 182, 200, 84 N. E. 133 (126 Am. St. Rep. 409). But, after hearing, it was ordered that a decree be entered dismissing the bill. The plaintiff appealed from that order.

In that state of the record the case was entered in the full court and was upon the list at its sitting for the county of Franklin in 1927. A motion was made by the plaintiffs in the full court that the bill be amended by adding a paragraph setting up mutual mistake of the parties in framing the deeds whereby the agreement that the grantees should assume and pay the mortgage incumbrances upon the granted premises was omitted. This motion was denied; but a rescript under date of October 19, 1927, was sent, of this tenor: ‘Appeal discharged and case remanded to the superior court for the purpose of there applying for an amendment to the record, and when such application shall have been acted upon the case is to be returned to the Supreme Judicial Court for argument upon the record as then constituted.’

The meaning of this rescript is that the case was discharged temporarily for the strictly limited purpose of enabling the superior court to examine and determine whether the record as printed was correct and conformed to the facts of the trial, or whether it ought to be amended in order to be a true record of what had occurred in that court up to the time of the appeal from the final decree. See Harrington v. Boston Elevated Railway, 229 Mass. 421, 432, 118 N. E. 880 (2 A. L. R. 1057). The case was not discharged as a whole and sent back to the superior court for the exercise of its general jurisdiction. Copies and other papers, if any, not connected with the part of the record sought to be corrected, remained in the full court and the case was to be returned here as soon as the strictly limited purpose of the discharge was accomplished. It is to be observed also that the final decree dismissing the bill was not reversed or modified, but remained a part of the record in the case. The whole scope of the rescript was to enable the superior court on proper motion to determine whether the record was correct and full and in conformity to the truth in respect to the issues actually tried before the master. This is thoroughly established practice. An amplified statement of it with full citation of authorities is found in Burbank v. Farnham, 220 Mass. 514, 515, 516, 107 N. E. 351,108 N. E. 492. See, also, Tighe v. Maryland Casualty Co., 216 Mass. 459, 103 N. E. 941;Ott v. Hogan, 254 Mass. 491, 493, 150 N. E. 324;Boucher v. Hamilton Manuf. Co., 259 Mass. 259, 267, 156 N. E. 424. It does not impinge at all upon the well-settled principle that after final decree in equity the case is finally disposed of subject only to rights of appeal and bill of review, White v. Gove, 183 Mass. 333, 340, 67 N. E. 359;Donovan v. Danielson, 263 Mass. 419, 161 N. E. 807, because whatever is done is pursuant to rescript of this court. Under such a form of rescript the jurisdiction of the superior court is confined within the narrow bounds specified and does not extend to other matters. The case in a sense is still pending in the Supreme Judicial Court. The sole purpose of such a rescript is to make sure that the case is presented to the full court in the form in which it ought to be presented to the end that justice according to law may be done between the parties. It is the duty of the superior court to follow implicitly the terms of the rescript and not to travel outside what is there laid down. Day v. Mills, 213 Mass. 585, 587, 100 N. E. 1113;Merrick v. Betts, 217 Mass. 502, 105 N. E. 384;Carchidi v. Kalayjian, 263 Mass. --, 162 N. E. 340.

It is manifest from the allegations of the bill and the findings of the master that the design of the full court in sending a rescript of the tenor described was to enable the plaintiffs to move to amend their bill so that its allegations might conform to the facts found by the master. Such a motion after a hearing ought to be allowed if the judge found that there had been a full and fair trial before the master on the issues covered by the report but not raised by the pleadings,and it ought to be denied if the judge is in doubt on that point. Scrupulous judicial care ought always to be exercised to be certain that there has been a full and fair hearing on the issues thus covered by the master and not raised by the pleadings. The proper practice was for the parties to have made the pleadings conform to the issues tried before the report of the master was filed. Fisher v. Doe, 204 Mass. 34, 39, 90 N. E. 592. But no objection and exception appear to have been made in connection with the trial before the master, and no exception was saved to the master's report. The statute as to amendments is broad and it applies to...