Cook v. Scheffreen

Decision Date12 September 1913
Citation215 Mass. 444,102 N.E. 715
PartiesCOOK et ux. v. SCHEFFREEN et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Arthur H. Russell and George Libby, both of Boston, for plaintiffs.

Claude L. Allen, of Boston, for defendants Scheffreen.

Samuel A. Fuller, of Boston, for defendant Pratt.



This is a bill to set aside for fraud an exchange of property between the plaintiffs, who are husband and wife, and the defendants two of whom also are husband and wife. The facts of the case appear from the master's report to be in substance as follows:

On October 11, 1911, Norman Cook owning a farm in Barre, and his wife Ellen owning (1) the life stock, tools and like personal property used in connection with it, and also (2) a cottage on an island in Casco Bay in the state of Maine, were induced to exchange these properties for an apartment house in Boston owned by the defendant Charles Scheffreen, and to give to him notes in the aggregate sum of twenty thousand dollars secured by a second mortgage on it (the apartment house). The master found that the plaintiffs were induced to make the exchange by false and fraudulent representations made by Charles Scheffreen and the defendant Pratt, his broker in the exchange, but that these representations were not made pursuant to a conspiracy so to do, as alleged in the bill. It appeared that the fraud was not discovered until February 1, 1912, or thereabouts, a month or so before this bill was filed. The stock and other personal property had been sold at auction by Scheffreen for less than their fair market value (which was eight thousand dollars), and that Scheffreen and Pratt owe the plaintiff that sum with interest from October 11, 1911.

Of the twenty-three exceptions taken by the defendants to the master's report the first ten are to the alleged admission or exclusion of testimony. Apart from the motion to recommit which is hereinafter considered, these exceptions could not be sustained because it does not appear from the master's report that the evidence which the defendants allege was admitted or excluded against their objection was admitted or excluded by him. O'Brien v. Keefe, 175 Mass. 274, 56 N.E. 588; Smith v. Butler, 176 Mass. 38, 57 N.E. 322; Long v. Athol, 196 Mass. 497 82 N.E. 665, 17 L. R. A. (N. S.) 96.

The remaining thirteen exceptions are to certain findings of the master on the ground that they are not supported by or are contrary to the evidence. But the evidence on which these findings were made not being before us these exceptions must be overruled. Henderson v. Foster, 182 Mass. 448, 65 N.E. 810; East Tennessee Land Co. v. Leeson, 183 Mass. 37, 66 N.E. 427; Burke v. Dorey, 208 Mass. 45, 94 N.E. 291; Crosier v. Kellogg, 210 Mass. 181, 96 N.E. 76; Attorney General v. Vineyard Grove Co., 211 Mass. 597, 98 N.E. 1070.

The defendants also made a motion to recommit the report for various reasons, and among others because the master had not set forth in his report the rulings made by him as to the admission of testimony, which rulings were the subject of exceptions by the defendants. By the terms of the order of reference the master was directed 'to hear the parties and their evidence and report his findings to the court together with such facts and questions of law as either party may request.' Under this form of reference the defendant had a right, upon requesting the master so to do, to have him report to the court all questions of law which arose in the course of his doing what he was ordered to do, namely, to find the facts. This included rulings as to the admission of evidence. In place of making such request of the master the defendants objected and excepted to his report because of incorrect rulings as to the admission of evidence, and asked to have the report recommitted because he had not set forth those rulings in his report. The provision in the master's report which we have just referred to was inserted in the order of reference to give to the parties a right to have all rulings of law made by the master in finding the facts (including his rulings as to the admission of evidence) passed upon by the court. The defendants should have requested the master to report to the court the rulings of law made by him as to the admission of evidence. And they have done that in substance although not in form. So far as this reason for recommitting the report is concerned the motion should have been granted.

Another ground on which the defendants asked to have the report recommitted to the master was because he had not reported the testimony on which he made the findings of fact objected to by them, and because they wished all the evidence introduced before the master reported to the court. When a party goes to trial before a master under an order of reference which does not direct him to report the evidence in whole or in part, it is too late to ask that that be done at least after the terms of his draft report have come to the knowledge of the parties. The purpose of such an order of reference is to leave to the master the final determination of the facts, and there is no justice in giving to the unsuccessful party who has taken his chances of a final determination in his favor an opportunity to try over again before the court the facts which were to be finally determined by the master. That has long been the settled rule of this court. See for example Nichols v. Ela, 124 Mass. 333; Parker v Nickerson, 137 Mass. 487; Moore v. Dick, 187 Mass. 207, 72 N.E....

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