General Ice Cream Corp. v. Stern
| Decision Date | 15 May 1935 |
| Citation | 291 Mass. 86,195 N.E. 890 |
| Parties | GENERAL ICE CREAM CORPORATION v. STERN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Suit in equity by the General Ice Cream Corporation against Pauline Stern. From an interlocutory decree overruling defendant's objection to the master's report and confirming the report, and from a final decree ordering the cancellation and discharge of a mortgage, defendant appeals.
Affirmed.
Appeal from Superior Court, Bristol County O'Connell, Judge.
H. A Lider, of New Bedford, for appellant.
S Rosenberg, of New Bedford, for appellee.
This is a suit in equity to enjoin the foreclosure of a chattel mortgage of a soda fountain, and for a decree that the defendant's claim thereon be cancelled and discharged. The case was referred to a master who heard the parties and made a report. The defendant objected ‘ to the master's report because he admitted in evidence a written agreement dated January 19, 1932 over the objection of the defendant.’ The judge entered an interlocutory decree overruling the objections and confirming the report, and a final decree ordering the cancellation and discharge of said mortgage. From said interlocutory and final decrees the defendant appealed to this court.
The master in substance found the following facts: Prior to January 19, 1932, one Albert C. Sheehan conducted a general variety store in New Bedford, under the name of ‘ Sheehans.’ He desired to operate a drug store but was not a registered pharmacist. On said January 19 by a bill of sale, he conveyed all of his stock of goods and fixtures, including ‘ the soda fountain,’ to one Charles F. Smith who was a registered pharmacist. He took back a note for $5,000 payable on demand, with interest at six per cent. per annum payable semi-annually, which note was secured by a mortgage of the same property described in the bill of sale, and at the same time he took an agreement signed by said Smith whereby it was agreed and understood that the object of the transaction was to use the name of Smith in order to obtain a license to run a registered drug store; that the goods and store actually belonged to Sheehan; that the moneys to be taken in should belong to Sheehan; that no money was to be paid out for goods except with the consent of said Sheehan; and that said Smith was to work for Sheehan as clerk. Sheehan supposed and considered that the agreement from Smith to him was a bill of sale of the stock and fixtures back to him. After the arrangement with Smith goods were purchased in the name of ‘ Depot Pharmacy’ and also in the name of ‘ Sheehans.’ After Smith went to work for Sheehan his license as a registered pharmacist was posted in the store until about December 24, 1933, when it was taken down and the sign ‘ Depot Pharmacy’ covered up. No business certificate was filed in the office of the city clerk. The bill of sale, note, mortgage and agreement were drafted and executed in the office of an attorney at law. After their execution Sheehan took possession of them and, with the exception of the note and mortgage, kept them until the bringing of this action. Smith was paid weekly wages by Sheehan.
The above are all the facts relating to the transaction between Smith and Sheehan set out in the record. The record does not disclose any delivery of the stock of goods or fixtures, including the ‘ soda fountain,’ or any delivery of the bill of sale from Sheehan to Smith, and there is nothing in the record by way of evidence to impeach the finding of the master ‘ that there was no delivery of the property,’ and no direct evidence and no finding by the master that the Smith-Sheehan mortgage was recorded in the city clerk's office.
On June 9, 1933, Sheehan borrowed $400 from one James E McCarty, on a note secured by an assignment of the Smith mortgage and the delivery of the Smith note which was not indorsed. The mortgage was duly recorded. At the time of the loan McCarty was intimate...
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