City of Boston v. Santosuosso

• Decision Date: 22 November 1940
• Citation: 30 N.E.2d 278,307 Mass. 302
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: CITY OF BOSTON v. JOSEPH SANTOSUOSSO & another.

307 Mass. 302

30 N.E.2d 278

CITY OF BOSTON v. JOSEPH SANTOSUOSSO & another.

Supreme Judicial Court of Massachusetts, Suffolk.

November 22, 1940

February 6, 7 1939.

Present: FIELD, C.

J., DONAHUE LUMMUS, QUA, & DOLAN, JJ.

Equity Jurisdiction, To enforce trust. Trust, What constitutes Constructive. Conspiracy. Agency, What constitutes, Of fellow conspirator. Equity Pleading and Practice, Appeal, Jury issues, Waiver, Rehearing. Judgment. Constitutional Law Trial by jury. Municipal Corporations, Officers and agents. Fiduciary. Evidence, Affecting credibility of witness, Competency, Of conviction, Consciousness of guilt, Admission. Witness, Impeachment, Credibility. Error, Whether harmful.

Upon facts warrantably found, a city was entitled to relief in equity by enforcement of constructive trusts against its mayor and a conspirator with him who severally had received and appropriated to their own use sums of money which the mayor, in breach of his fiduciary duty, had procured to be paid by the city in accordance with and in satisfaction of a judgment entered by agreement against it in favor of a client of the fellow conspirator.

Upon appeal from a final decree following hearing of a suit in equity on the merits, this court did not reconsider questions of law previously decided upon a report of the overruling of a demurrer to the bill.

The mere fact that a judgment against a city, entered in accordance with an agreement for judgment and judgment satisfied, was valid as against the city did not preclude the city from maintaining a suit in equity to enforce constructive trusts against its mayor and the attorney for the judgment creditor where it appeared that the agreement and judgment had been procured by the mayor, acting in violation of his fiduciary duty and in conspiracy with the attorney whereby they procured and severally appropriated to their own uses portions of the amount purported to be paid on the judgment.

The mayor of a city and a fellow conspirator had no constitutional right to have issues framed for trial by jury in a suit in equity to enforce against them constructive trusts arising from their unlawfully having procured money of the city to be paid to them to their own use; nor, on appeal from a denial of motions for such issues, was any abuse of discretion shown.

No harm resulted to the defendant in a suit in equity, and no reversible error was shown, in the exclusion of evidence, which was offered solely to controvert an averment of the bill that the plaintiff conceded was not true and did not rely on at the trial, and which if admitted would not have placed the defendant in a more favorable position.

In a suit to enforce a constructive trust of the plaintiff's money alleged to have been unlawfully appropriated by the defendant in conspiracy with a third person and contended by the defendant to have been received and retained by the third person, it was proper to exclude evidence offered by the defendant of statements by the third person made five months before the alleged conspiracy and unlawful appropriation and tending to show that he expected to get a large sum from the plaintiff.

After the admission without objection of a transcript of certain testimony previously given before a commission and accurately describing certain items in a document before the commission, no prejudicial error appeared in the exclusion of the document itself.

No error appeared in the exclusion of a record of a court, offered to affect the credibility of a witness, purporting to show that he had pleaded guilty to a criminal charge but that the court "did render judgment" therein "and did suspend sentence on" him; no "conviction" within G. L. (Ter. Ed.) c. 233, Section 21, was shown.

One of two defendants in a suit in equity, by relying in argument before this court upon evidence which at the trial was limited in application to the other defendant, waived his right to insist upon the limited application.

A conspirator may be the agent of a fellow conspirator in carrying out the conspiracy.

Upon evidence fully reported in a suit in equity against the mayor of a city and the attorney for the claimant in an action against the city, findings were warranted that, following the making of an arrangement between the mayor and a representative of the claimant which included provision for a payment of a sum of money to the mayor, a settlement of the claim upon an agreement for a judgment against the city was approved by the mayor, that in carrying out such arrangement a check of the city for a lump sum, given according to the agreement to the attorney for the judgment creditor, was deposited in the attorney's bank account, that he retained part thereof for his own use and drew a check for another part to the creditor's representative who cashed it and turned its proceeds over in large bills to the judgment creditor's attorney, and that the attorney gave that sum of money to the mayor; and conclusions were warranted that the mayor, in breach of his fiduciary duty, received money of the city for his own use and was chargeable as a constructive trustee at least for the money so received; and that the attorney, because of his participation in the mayor's breach of fiduciary duty, was chargeable as a constructive trustee at least for money he received.

No error appeared in the exercise of his discretion by a judge who denied a motion, based on allegations of newly discovered evidence, for a rehearing of a suit in equity.

BILL IN EQUITY, filed in the Superior Court on January 21, 1937. The case was heard on its merits by Fosdick, J.

W. P. Murray, for the defendant Curley. F. L. Simpson, for the defendant Santosuosso.

E. F. McClennen, Special Corporation Counsel, for the plaintiff.

FIELD, C.J. This is a suit in equity brought by the city of Boston to compel the defendants Joseph Santosuosso and James M. Curley and each of them "to make full performance of their trust" with respect to a sum of approximately $50,000, alleged in the bill of complaint to belong to the plaintiff and to have been received by the defendants without any consideration therefor, as they well knew.

The bill of complaint -- which is fully described in the opinion of this court in Boston v. Santosuosso, 298 Mass. 175 177-178 -- sets forth the circumstances in which, as the plaintiff alleges, the sum of money referred to in the bill was received by the defendants. It is alleged that the defendant James M. Curley from January, 1930, until January 1934, was the duly elected and qualified mayor of the city of Boston, and that "In or about November, 1933, the said James M. Curley and the . . . [defendant] Joseph Santosuosso and a representative of Ernest W. Brown, Inc., entered into and agreed among themselves upon a scheme whereby the said James M. Curley by reason of his power and influence as mayor of the city of Boston would bring it about that certain claims hereinafter described which were the subject matter of suits of the General Equipment Corporation against the city of Boston then pending in the Superior Court for the county of Suffolk and therein numbered 274314 and 275543 would be settled by the payment by the city of the sum of $85,000 to said Joseph Santosuosso and with the agreement between said three that a large part of the proceeds of said money so paid to said Santosuosso -- a sum the exact amount of which the complainant is ignorant but which was about $30,000 or $40,000 -- would be paid over by said Joseph Santosuosso to said James M. Curley as if for his own use; and about the end of said month of November said three parties put into effect, carried out, and completed, said scheme, and said money was paid over in accordance therewith as hereafter more in detail set out; and thereby the . . . [defendants] became in their own wrong and remain trustees for the city of Boston of approximately $50,000." "After the agreement upon the scheme aforesaid of the . . . [defendants] and said representative of Ernest W. Brown, Inc., and for the purpose of receiving to himself the money aforesaid the . . . [defendant] James M. Curley as mayor approved and brought about the settlement of said suits by causing to be paid to said Joseph Santosuosso from the moneys of the city of Boston the sum of $85,000 and said Santosuosso, in pursuance of said scheme, received said $85,000 and with the assistance of said representative of Ernest W. Brown, Inc., received and retained the sum of $50,000 of which he gave to said James M. Curley a large part, approximately $30,000, with the knowledge and approval of said representative of said Ernest W. Brown, Inc.; and the said Santosuosso out of said $85,000 gave or caused to be given to said Ernest W. Brown, Inc., the sum of $20,000 and to the said representative of Ernest W. Brown, Inc., the sum of $15,000 for compensation." The suits referred to in the bill are identified therein as two proceedings brought on or about January 21, 1932, by said Ernest W. Brown, Inc., "against the said city of Boston in the Superior Court for Suffolk County in the name of General Equipment Corporation . . . one an action of tort and the other a petition for assessment of damages . . . to recover on account of damages alleged to have been done" to certain premises in Boston. It is alleged that these "two proceedings were tried together in June of 1933 before the court and a jury and a verdict was found therein subject to leave reserved for the said General Equipment Corporation, and thereupon the court, pursuant to leave reserved, set said verdict aside and entered a verdict for the city on or about June 24, 1933, on the ground that there was no liability on the part of the city." It is further alleged that the defendant "...