Braman v. Foss

• Decision Date: 08 January 1910
• Citation: 204 Mass. 404,90 N.E. 563
• Parties: BRAMAN v. FOSS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

204 Mass. 404

90 N.E. 563

BRAMAN v. FOSS.

Supreme Judicial Court of Massachusetts, Suffolk.

January 8, 1910

COUNSEL

Jas L. Putnam, for appellant.

S. R Wrightington, for respondent.

OPINION

BRALEY J.

The case having been referred to a master, the plaintiff alleged several exceptions to the report, of which, only those relating to the 600 shares of Reading stock having been argued, the others may be considered as waived. It appears upon evidence not reported, that the master determined the defendant was entitled, not only to the shares, but to the dividends which had accrued, and been paid to the plaintiff. The argument is that the finding, being beyond the scope of the bill, is not justified by the pleadings. If the prayers for relief were limited to a cancellation of the agreement, which it was alleged had been fraudulently procured, and a reconveyance of the land, and an assignment to the plaintiff of an outstanding mortgage and note held by the defendant, with an accounting to determine what amount the plaintiff owed the defendant, the fourth paragraph of the bill alleges that the value of the shares in dispute was included in the gross amount due from the plaintiff under the instrument. But after reference to the master, and a partial hearing before him, the plaintiff amended his bill, by adding another paragraph containing allegations as to other transactions, and a general prayer, in which he asked for an accounting of all transactions between them, and that his rights be determined in all claims of whatsoever nature he had against the defendant. It would seem sufficiently plain that the title to the shares had been put in suit by the pleadings, when the defendant in his answer to the original bill avers that by the terms of the agreement the indebtedness is in addition to the obligation of the plaintiff to deliver the shares. If any doubt, however, remained, it is removed by the statements in the report that under a written stipulation of the parties but five matters were left in controversy under the bill as amended, one of which was whether the plaintiff was bound to deliver the shares to the defendant. By the order of reference, unless waived at the hearing, the master was required to pass upon the issues presented by the pleadings, and until the right of property in the shares had been determined the account could not be stated. The interlocutory decree, overruling the plaintiff's exceptions to the report, must be affirmed.

It is further contended that so much of the final decree as declared that it is the duty of the plaintiff to deliver the stock to the defendant, and pay over the dividends received is erroneous. The plaintiff does not controvert the general principle that, where a court of equity obtains jurisdiction of a controversy on any ground, it will, to avoid multiplicity of suits, administer complete relief by the adjustment of all equities connected with the subject of the suit, which may be authorized by the pleadings. Richards v. Todd, 127 Mass. 167; Rathbone v. Warren, 10 Johns (N. Y.) 587. If, however, a defendant desires affirmative relief, he must resort to a cross-bill. Andrews v. Gilman, 122 Mass. 471. But in suits to settle the affairs of a partnership, or for the foreclosure or redemption of a mortgage where a statement of accounts is involved, or in a bill for an accounting, both parties are actors, and a defendant may have a decree in his favor without the aid of a cross-bill. Goldthwaite v. Day, 149 Mass. 185, 21 N.E. 359; Worthington v. Waring, 157 Mass. 421, 428, 32 N.E. 744, 20 L. R. A. 342, 34 Am. St. Rep. 294; Done's Case, 1 P. Wms. 263; Glenn v. Hebb, 17 Md. 260; Wyatt v. Sweet, 48 Mich. 539, 12 N.W. 692, 13 N.W. 525; Jenks v. Smith, 14 R.I. 634; Raymond v. Came, 45 N.H. 201. The...