Cann v. Barry

• Decision Date: 29 January 1936
• Citation: 199 N.E. 905,293 Mass. 313
• Parties: CANN v. BARRY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

293 Mass. 313

199 N.E. 905

CANN

v.BARRY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 29, 1936.

Report from Superior Court, Suffolk County; Morton, Judge.

Suit in equity by Robert C. Cann against Richard H. Barry and others. On judge's report of an interlocutory decree entered by his order.

Decree reversed.

D. H. Fulton and P. Sherman, both of Boston, for plaintiff.

W. P. Murray, of Boston, for defendants.

QUA, Justice.

This is a bill in equity to compel the defendant Barry to transfer and assign to the plaintiff the lease and personal property of the restaurant known as ‘Cann's Cabin’ at Point of Pines in Reverse and to restrain him from interfering with the good will of the business.

The facts are established by a master's report. For ten years prior to December, 1933, the plaintiff had owned and operated a successful restaurant on the premises. The name Cann had become associated in the public mind with sea food of high quality. In December, 1933, Barry began to sell liquor at the restaurant under an arrangement with Cann by which Cann was to have thirty per cent. of the gross profits from the liquor. The parties held the licenses jointly. In July, 1934, the land under the building having been taken by the commonwealth, Cann and the landowner entered into a written agreement under which a new restaurant was to be built on adjoining land and Cann was to have a ten-year lease upon it. Cann designed the new building, Barry assisting in the designing of the new tap room. On October 25 Cann made a general assignment for the benefit of his creditors. On October 30 he was severely injured in an accident, as a result of which he stayed in a hospital until December 24 and thereafter was confined to his house until February 7, 1935. He was adjudicated bankrupt on November 30, 1934. Barry visited Cann at the hospital six or eight times, expressed his sympathy, told Cann not to worry ‘and assured him that he would look after things at the restaurant.’ They conferred as to the construction then going on. ‘All these conversations * * * were on the expressed understanding that they were to go on in business together as theretofore.’ Cann said he thought the assets could be bought from the receiver in bankruptcy for a small amount. Barry said he would buy them as cheaply as he could and advance the money and Cann could reimburse him ‘when things got straightened out.’ At several similar talks Barry said he was making the arrangements to buy. In a conversation at the hospital December 16 lasting three or four hours Barry said, ‘I will buy in the assets for you and we will go on as before and when things improve you can pay me back.’ Cann assented and thanked Barry. On a suggestion being made by a person present that ‘they had better put it in writing,’ Barry replied ‘that they trusted each other and had begun business with a handshake and were content to go on in the same way, and Cann said he was satisfied.’

On December 29, 1934, Barry completed the purchase from the receiver of the assets of the bankrupt at Point of Pines, including the good will and the right to obtain the new lease. Barry paid therefor the sum of $400. On January 2, 1935, Barry obtained from the landowner a new lease of the new building for the same term and on the same conditions as had been provided in the agreement between the landowner and Cann. After the interview of December 16 at the hospital Barry avoided Cann's attempts to communicate with him. On January 11, 1935, he told Mrs. Cann that he had bought the place, that it was his, and that he ‘was through being Santa Claus.’ When the building was completed, Barry advertised the ‘Reopening of Cann's Cabin’ and has since then operated the restaurant under that name, employing ‘in key positions' former employees of Cann.

The master continues: ‘I find as a fact as early as the latter part of November Barry had formed the design of taking Cann's business away from him and that all his dealings with Cann thereafter were directed to that end. Barry's assurances that he would look after everything and that Cann need not worry were for the purpose of lulling Cann into a sense of security and to prevent his taking other steps for his protection. * * * The promise to buy the assets for Cann had a double aspect. It was made with a fraudulent intention that it would not be kept for the purpose of preventing other effective measures by Cann. It was also made so that if Cann should succeed in saving his property in spite of Barry's scheme then Barry would have the advantage of his contract with Cann to have the liquor business.’ The master further finds, ‘in so far as it is matter of fact,’ that Cann is the beneficial owner of the lease, business and good will.

The judge confirmed the master's report and entered an interlocutory decree ordering the defendant to assign his present lease to the plaintiff and to release and deliver to the plaintiff the personal property and enjoining the defendant from using the name ‘Cann's Cabin’ and from interfering with the good will of the business. The judge has reported for our determination the question of the correctness of this decree.

G.L.(Ter.Ed.) c. 203, § 1, provides that ‘No trust concerning land, except such as may arise or result by implication of law, shall be created or declared unless by a written instrument signed by the party creating or declaring the trust or by his attorney.’ It is settled in this commonwealth...