Davidson v. Zieman

• Decision Date: 03 July 1933
• Citation: 186 N.E. 651,283 Mass. 492
• Parties: DAVIDSON v. ZIEMAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

283 Mass. 492

186 N.E. 651

DAVIDSON

v.ZIEMAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

July 3, 1933.

Appeal from Superior Court, Suffolk County; Goldberg, Judge.

Suit by Samuel Davidson against Max J. Zieman and another. From a decree dismissing plaintiff's bill of complaint, plaintiff appeals.

Modified and affirmed.

J. H. Morris, of Boston, for appellant.

S. T. Lakson and M. D. H. Schon, both of Boston, for appellees.

LUMMUS, Justice.

The plaintiff alleges in his bill that he and the defendants were partners in a building enterprise, and asks for an accounting and for the cancellation of mortgages held by Max J. Zieman, one of the partners. The defendant Max Zieman admitted being in partnership with the plaintiff, but the defendant Max J. Zieman denied it, and contended that he was simply a mortgagee of premises owned by the partnership. The finding of the master that Max J. Zieman is only a mortgagee and not a partner disposes of the ground of the original bill as against Max J. Zieman, and the plaintiff does not argue that the bill ought to be retained for the purpose of obtaining an accounting against Max Zieman.

By an amendment to the bill, allowed during the hearings before the master, the plaintiff alleged that the defendant Max J. Zieman was acting in a dual capacity as attorney for the plaintiff and as mortgagee, and in that dual capacity overreached the plaintiff by making unconscionable charges and also by purchasing a parcel of land for himself as to which he was acting for the plaintiff as attorney, and prayed for an accounting against Max J. Zieman alone, and for the cancellation of a mortgage for $20,500 held by him.

The master found that ‘The defendant Max J. Zieman is an attorney at law * * * and was at all times counsel for the plaintiff and counsel for himself in the matters referred to in the instant bill.’ The master found that about the middle of September, 1928, the partnership offered one Newman $30,000 for a large parcel of land on Seaver and Brookledge streets in the Roxbury district, and the offer was refused. Shortly before October 17, 1928, the defendant Max J. Zieman began negotiations for its purchase for himself, and on that day he bought it for $33,500. Almost at once he sold the Seaver street part of the parcel for $24,000, and sold the Brookledge street part to the partnership for $17,400, thus making a profit of $7,900. The plaintiff claims that profit for the partnership. But the master reports that he is ‘unable to find that knowledge of said transaction * * * came to the said defendant from the plaintiff.’ Apparently he does not find that the defendant Max J. Zieman knew that the partnership had been interested in the purchase of the parcel. It is to be noticed that the plaintiff must have known of the conduct of Max J. Zieman, whatever it was, at the time the partnership agreed to buy the Brookledge street part from him, and during their many subsequent transactions, and so far as appears the plaintiff did not see any cause to complain until the filing of this bill more than two years afterwards. The plaintiff could not have...