Di Burro v. Bonasia
| Decision Date | 04 February 1947 |
| Citation | 321 Mass. 12,71 N.E.2d 401 |
| Parties | DI BURRO et al. v. BONASIA. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Suit in equity to establish constructive trust and for other relief by James G. DiBurro and others against Michael R. Bonasia. From the decree, the plaintiffs appealed.
Affirmed.Appeal from Superior Court, Essex County; Williams, Judge.
Before FIELD, C. J., and RONAN, WILKINS, and SPALDING, JJ.
G. Karelitz, of Haverhill, for plaintiffs.
W. C. McDonald, of Haverhill, for defendant.
This is a bill in equity seeking that the defendant be declared to hold certain real estate and a restaurant as constructive trustee for the plaintiffs and that he be ordered respectively to convey and assign them accordingly. From a decree dismissing the bill, the plaintiffs appealed. The evidence is reported, and the judge, in response to a request for a report of the material facts, adopted as such the facts previously found by him in his ‘findings and order for final decree.’ G.L. (Ter.Ed.) c. 214, § 23, as appearing in St. 1945, c. 394, § 1. Acacia Mutual Life Ins. Co. v. Feinberg, 318 Mass. 246, 247, 61 N.E.2d 122.
We summarize the findings of the judge. Under date of May 23, 1946, the defendant, a real estate broker in Haverhill, received from Mrs. Bettina Joe in Taunton a letter asking him to find a purchaser for her restaurant at 42 Main Street, Haverhill, at a price of $8,000 ‘beside your commission.’ The three plaintiffs were partners operating two restaurants in that city. Three or four days later, the defendant, believing that they might like to become purchasers, showed the letter to the plaintiff James G. DiBurro. DiBurro was interested, but suggested that the defendant look into the financial condition of the restaurant and ascertain whether Mrs. Joe would also sell the real estate where the restaurant was situated. On May 28 the defendant wrote to Mrs. Joe, The customer referred to ‘presumably was DiBurro.’ Later the defendant met Mrs. Joe, learned that she would sell the real estate and restaurant combined at a price, and eventually purchased both himself.
Examining the evidence in accordance with the often stated rule (see Boston v. Santosuosso, 307 Mass. 302, 331, 332, 30 N.E.2d 278, and cases cited), we do not regard this as an appropriate case for revising the findings of the judge. The evidence consisted almost entirely of the oral testimony of the plaintiff James G. DiBurro and of the defendant. The real estate is a three-story brick building in a business section, with two stores occupied by the restaurant on the first floor, two shops on the second floor, and apartments on the third. The plaintiffs are brothers, and the subject matter of this case seems to have been handled on their behalf by the plaintiff James G. DiBurro (hereinafter called the plaintiff). The defendant not only is a real estate broker, but has made extensive purchases and sales of real estate for himself or his wife. The only time he talked with the plaintiff before the execution of the agreement of sale was on May 27. The defendant first saw Mrs. Joe on June 5, and he next saw her twice on June 11. On the latter date a written agreement of sale to the defendant was executed, and on June 18 a deed to the defendant of the real estate was delivered.
Under the letter of May 23 from Mrs. Joe the defendant was unquestionably her broker at the beginning. The evidence did not require the judge to find that the defendant subsequently became the plaintiffs' broker. Many of the plaintiffs' contentions are founded upon testimony of the plaintiff James G. DiBurro, which the judge did not have to accept. According to the defendant's testimony-which the judge must have believed in large part at least-as soon as the possibility of the purchase of the real estate was suggested on May 27, the defendant informed the plaintiff that, if the building was for sale, he would be interested in it himself; that the plaintiff ‘dropped it right there’; and that it ‘was a final talk when he didn't seem too interested to me.’ The reference to ‘a potential customer’ (who was ‘presumably’ the plaintiffs) in the defendant's letter of May 28 to Mrs. Joe or in his conversation with her on June 5 did not require a ruling that the defendant was the plaintiffs' broker. Libby v. Smith, 293 Mass. 465, 471, 200 N.E. 369. Nor was such a ruling required, to say the least, by the defendant's testimony as to his conversations with Mrs. Joe on June 11. On that day Mrs. Joe...
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