Dupree v. Gipstein

• Decision Date: 13 January 1975
• Citation: 321 N.E.2d 834,2 Mass.App.Ct. 769
• Parties: Thomas H. DUPREE et al. 1 v. Melvin GIPSTEIN et al. 2
• Court: Appeals Court of Massachusetts

Page 834

321 N.E.2d 834

2 Mass.App.Ct. 769

Thomas H. DUPREE et al. ¹ v. Melvin GIPSTEIN et al. ²

Appeals Court of Massachusetts, Middlesex.

Argued Dec. 11, 1974.

Decided Jan. 13, 1975.

Henry Gesmer, Boston, or petitioners.

Morris Michelson, Boston, for respondents.

Before HALE, C.J., and ROSE, KEVILLE and GRANT, JJ.

GRANT, Justice.

This is a petition to vacate a judgment entered against the petitioners at the conclusion of an action of contract brought against them in the Superior Court by the respondents herein. The ultimate objective of the petition is to secure leave to file and prosecute a bill of exceptions with respect to the order for judgment in favor of the respondents herein which was entered in the original action. The petition is here on (1) a bill of exceptions brought by the respondents which challenges the sufficiency of the evidence to warrant the finding of a judge of the Superior Court that the petitioners' oversight or neglect in failing to file a bill of exceptions was excusable, and (2) a bill of exceptions brought by the petitioners which attacks the same judge's order denying the petition for lack of a meritorious case. ³

The original action was brought to recover the unpaid face amount of a promissory note which the petitioners had given to the respondents. The critical order for judgment which the petitioners seek to have reviewed by an appellate court was entered following a hearing held on the pleadings, on certain admissions, and on opposing affidavits submitted under the summary judgment procedure which then prevailed under G.L. c. 231, § 59, as amended through St.1965, c. 491, § 1. The procedural argument for the existence of a meritorious case is that the petitioners' answer in the original action set up a good defence to the action which was supported by facts asserted in affidavits submitted in their behalf which were not contradicted by anything found in the affidavits submitted in the respondents' behalf. The substantive argument for the existence of a meritorious case, reduced to its simplest terms, is that the note in question was given to the respondents for an illegal consideration and was therefore void. We proceed to an examination of the latter contention so far as it is disclosed and supported by the petitioners' bill of exceptions.' ⁴

It appears from that bill that the respondents were three of the several heirs of one Bertha E. Cohen who had died intestate owning valuable real estate which the petitioners were desirous of purchasing from the heirs. Construing the bill most favorably to the petitioners, it seems likely that the note in question was solicited by the respondents in return for their services in facilitating the desired purchase by obtaining the assent of all the heirs to an agreement to sell the real estate to the petitioners. The note was ultimately delivered to the respondents upon the conveyance of the real estate to the assignee of the petitioners' rights under a purchase and sale agreement signed by all the heirs.

The petitioners' answer to the declaration in the original action included (see n. 4) 'the following allegations of affirmative defenses: lack of consideration . . . and denial of liability on the note on the alleged ground that the . . . (respondents) obtained it pursuant to a scheme and plan among them they being among the heirs of Bertha E. Cohen to defraud the other heirs of Bertha E. Cohen.' An affidavit of one Rosenshine, whose relationship to and first-hand knowledge of the pertinent transactions are matters of conjecture, asserts that 'the note was procured by . . . (the respondents) without the knowledge or agreement of the other heirs entitled to participate in the proceeds of the sale of the real property as heirs of the late Bertha E. Cohen.' ⁵

The petitioners argue from the foregoing that the respondents stood in a fiduciary, or at least a confidential, relationship to the other heirs and that the agreement which generated the note was illegal because it necessarily required the respondents to give the other heirs advice which was not disinterested. We do not think any such contention can be successfully maintained on this record. It is nowhere asserted that the respondents' relationship to the other heirs was in fact of a fiduciary or confidential nature, and it is clear that no such relationship between heirs is to be presumed. Meskell v. Meskell, 355 Mass. 148, 151--152, 243 N.E.2d 804 (1969). See Kelly v. Kelly, 358 Mass. 154, 156--157, 260 N.E.2d 659 (1970); Bogert, Trusts and Trustees, § 482, at 145--149 (2d ed. 1960).

Nor, in the absence of more than appears from this record, do we think it a permissible inference that the agreement between the parties required the respondents to hold themselves out to the other heirs as the dispensers of disinterested...