Eddy v. Fogg

• Decision Date: 05 September 1906
• Citation: 78 N.E. 549,192 Mass. 543
• Parties: EDDY v. FOGG et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

192 Mass. 543

78 N.E. 549

EDDY v. FOGG et al.

Supreme Judicial Court of Massachusetts, Suffolk.

September 5, 1906

COUNSEL

W. N. Buffum and Irving L. Rich, for appellant.

Frederic H. Chase and Leo. A. Rogers, for respondent Fogg.

OPINION

MORTON, J.

This is a bill for an accounting in respect to various transactions between the plaintiff's intestate and the defendant Fogg. The other defendants are only stakeholders. The case was sent to a master under the usual rule to hear the parties and report his findings with such facts and questions of law as either party might request. The plaintiff filed exceptions to the master's report. A final decree was entered in the defendant Fogg's favor in which the plaintiff's exceptions were overruled and the report was confirmed. The plaintiff appealed from this decree. He also appealed from the overruling of motions made by him after the report was filed, that the master be ordered to report certain portions of the evidence, and that the report be recommitted to the master with directions to report upon certain matters specified in the motion for recommittal.

If the motions thus made and overruled did not relate to matters entirely within the discretion of the judges who heard them there is, nevertheless, nothing to show that the motions were wrongly overruled as matter of law. Moore v. Dick, 187 Mass. 207, 72 N.E. 967; Bakshian v. Hassanoff, 186 Mass. 255, 71 N.E. 555; Henderson v. Foster, 182 Mass. 447, 65 N.E. 810; Silva v. Turner, 166 Mass 407, 44 N.E. 532; Bowers v. Cutler, 165 Mass. 441 43 N.E. 188.

The plaintiff was apparently content to go to a hearing before the master under the rule as it was issued. And it was not till after the hearings before the master, which must have been somewhat protracted, were concluded, and the master had submitted his draft report that any request or suggestion appears to have been made by the plaintiff that the testimony or any part of it should be reported. The report is long and elaborate and the judges who passed upon the motions may well have been of opinion after hearing all that the plaintiff had to say that justice did not require that the motions should be granted.

Neither do we see anything erroneous in the action of the court in hearing the motions for recommittal and a report of the evidence at the same time with the motion for the confirmation of the master's report. The order in which the business before it should be dealt with, was entirely in the discretion of the court.

This brings us to the exceptions to the report. The sixth exception has been waived. The remaining exceptions relate to the Central Bank note so called, to the alleged losses of the C. W. Holden Insurance Agency in which Holden and Fogg were equal partners, one-half of which it is contended should have been allowed the Holden estate, and to a quarter interest in Holden, Eddy & Co. the value of which the plaintiff contends should have been allowed by the master to Holden's estate.

The evidence not having been reported the master's findings in regard to matters of fact cannot be revised, and the only question before us is whether there is anything in the facts found by the master which is inconsistent with or requires a conclusion different from that expressed in the decree. Cleveland v. Hampden Savings Bank, 182 Mass. 110, 65 N.E. 27; O'Brien v. Murphy, 189 Mass. 353, 75 N.E. 700.

1. The Central Bank note matter was briefly as follows: The defendant Fogg gave to the Central Bank his note for $7,500 and, as collateral security therefor, a note for $5,000 given to him by Eddy, and a note for $2,510 given to him by Holden which Fogg indorsed waiving demand and notice, and for the payment of which, as Fogg notified the bank and as the master has found, he held collateral security from Holden. The bank passed into the hands of a receiver who sued both Fogg and Holden on these notes. In the action against Fogg there was a finding in favor of the plaintiff for $1,417.16. Holden was defaulted in the action against him, and execution issued for $2,936.27 and costs. The plaintiff contends that Fogg had no right to hold the collateral, which he had received from Holden, as security for the $2,510 note aforesaid, and that he had no right to pledge the note with the collateral to the bank. But the master has expressly found that Fogg held the collateral as security for this note, and that he had a right to pledge the note and collateral to...