Cann v. Barry
| Citation | 298 Mass. 186,10 N.E.2d 88 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Decision Date | 16 September 1937 |
| Parties | ROBERT C. CANN v. RICHARD H. BARRY & another. |
May 12, 1937.
Present: RUGG, C.
J., CROSBY DONAHUE, LUMMUS, & QUA, JJ.
Trust Constructive. Equity Jurisdiction, Accounting, To enforce trust.
Upon appeal from a decree granting relief against a constructive trustee, this court refused to review a former decision that the constructive trust existed.
A constructive trustee of personal property, who placed a mortgage on it for his own purposes and without benefit to the real owner, was required to return the property to the owner exonerated from the mortgage and mortgage note.
One adjudged to be a constructive trustee of a lease to him was entitled, upon assigning the lease to the cestui, to have the cestui assume all unsatisfied obligations under the lease and under a note required by the lessor to be given by the lessee-trustee for arrears of rent and taxes which had accrued during previous possession of the cestui, but not to any security from the cestui to indemnify the trustee against such obligations.
BILL IN EQUITY filed in the Superior Court on April 30, 1935. The suit previously was before this court upon a report of an interlocutory decree "that the defendant forthwith assign to the plaintiff the lease of the real estate in Revere, Massachusetts, referred to in the bill, dated January 2, 1934[5?], given by Alden A. Mills, Trustee of the Point of Pines Trust, to Richard H. Barry, recorded with Suffolk Deeds, Book 5504, Page 33, and that the said Barry release and deliver to the plaintiff the personal property and equipment located in and connected with Cann's Cabin at Revere, Massachusetts, and the said Barry, his servants, agents, attorneys and representatives, are permanently enjoined and restrained from using the name `Cann's Cabin' or from doing or saying anything to interfere with the good will of the business therein, hereinafter to be conducted." Proceedings in the Superior Court following the decision reported in 293 Mass. 313 are described in the opinion. By order of Swift, J., a final decree was entered adopting the language of the interlocutory decree above quoted and adding an order directing the defendant Barry "forthwith to procure and deliver to said Cann or his representatives a good and sufficient discharge of a certain mortgage of personal property purporting to cover the assets of Cann's Cabin, dated February 27, 1935, recorded with the records of mortgages of personal property in the city of Revere on February 27, 1935, the day of its date." The defendant Barry appealed. The mortgage referred to in the final decree is the "Morgan mortgage" referred to in the opinion.
W. P. Murray, for the defendant Barry. D. H. Fulton, for the plaintiff.
When this case was here before, we decided that the defendant Barry held the leasehold, equipment, business and good will of a restaurant upon a constructive trust for the plaintiff. Cann v. Barry, 293 Mass. 313 . Upon long established principles, we do not review that decision upon the present appeal. Pingree v. Coffin, 12 Gray, 288, 324. Wall v. Old Colony Trust Co. 177 Mass. 275 , 279. Boston Bar Association v. Casey, 204 Mass. 331, 336. Spilios v Papps, 292 Mass. 145 .
After that decision, the case was recommitted to the master to state the account between the parties. The accounting was difficult and somewhat uncertain, because of the absence of reliable books of account. The substance of the report was that the defendant Barry had already "recovered the amount of his original investment and something more" -- how much more the master was unable to find -- "by way of profit." The master found that the defendant Barry had placed a mortgage upon the property in question in favor of one George F. Morgan for $2,000, which Barry owes the duty of removing. The report...
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