Glover v. Waltham Laundry Co.

• Citation: 127 N.E. 420,235 Mass. 330
• Parties: GLOVER v. WALTHAM LAUNDRY CO. et al.
• Decision Date: 01 April 1920
• Court: United States State Supreme Judicial Court of Massachusetts

235 Mass. 330

127 N.E. 420

GLOVER

v.WALTHAM LAUNDRY CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 1, 1920.

Appeal from Supreme Judicial Court, Suffolk County.

Suit by Lillian M. Glover against the Waltham Laundry Company and others. From decree dismissing the bill, plaintiff appeals. Reversed, and new decree ordered for plaintiff.Francis M. Carroll and Romney Spring, both of Boston, for appellant.

Elbridge R. Anderson and Samuel D. Elmore, both of Boston, for respondent Samuel D. Elmore, Ex'r.

Frederick C. Allen, of Boston, for respondent Seymour S. Glover.

RUGG, C. J.

This is a suit in equity brought by the widow of Clarence R. Glover against the executor of his will and others, in substance seeking to impress with a trust in her favor shares of stock in a corporation known as the Waltham Laundry Company.

This case has been referred to a master, was heard upon the master's report alone by the single justice, and comes before us on appeal from a final decree entered by him. This court stands, with reference to the facts found and the power and duty to draw inferences as did the single justice, unaffected by the conclusion reached by him. Where findings and inferences rest upon the observation of witnesses who have testified orally, the appellate court does not reverse unless plainly wrong; but where the facts all are documentary or are in a master's report, then this court on appeal has the same functions as a single justice and draws the proper inferences for itself. Rioux v. Cronin, 222 Mass. 131, 134, 109 N. E. 898;Harvey-Watts Co. v. Worcester Umbrella Co., 193 Mass. 138, 78 N. E. 886; Dominion Trust Co. v. New York Life Insurance Co., 1919 A. C. 254, 257; Bacon v. Abbott, 137 Mass. 397, 399;American Circular Loom Co. v. Wilson, 198 Mass. 182, 200, 84 N. E. 133,126 Am. St. Rep. 409.

The evidence is not reported. Therefore the facts found by the master must stand unless upon the face of his report they are mutually inconsistent or contradictory and plainly wrong. Crane v. Brooks, 189 Mass. 228, 75 N. E. 710;Young v. Winkley, 191 Mass. 570, 573, 78 N. E. 377.

The master found that in 1897 the deceased, Clarence F. Glover, having had some experience in the laundry business, went to work for one Simes, who was conducting a laundry in Waltham, for a weekly salary and a commission, and continued in this employment until September 22, 1898. The deceased then was without substantial financial resources. He lived in the same house with the plaintiff, at that time unmarried, who had several hundred dollars in bank. The master found that the deceased was not in fact a partner with Simes and had no interest in the business except as employé. This finding is quite consistent with the other findings and appears to be the rational inference from the general relation of the parties. Although the deceased had some customers of his own, whom he brought to Simes, worked in part on a commission basis, induced Simes to adopt the trade name of Frank Simes & Co. so that he could represent himself as partner, to the knowledge of Simes, lent small sums of money to Simes and borrowed from him and drew money in excess of the amount due him, all of which were repaid by each debtor, these facts are not incompatible with the main finding that the deceased was not a partner with Simes.

On September 22, 1898, Simes executed and delivered to the deceased a bill of sale, running to the plaintiff, of the goods and chattels of his laundry business. The negotiations for this purchase were conducted by the deceased on the plaintiff's behalf, and on the day on which the bill of sale was delivered, or the day after, the plaintiff went to the place where the laundry business was carried on and in the presence of Simes and the deceased declared that she was the owner of the laundry and that she took possession of it. The consideration for the purchase was agreed to be $3,000, to be paid in cash. It was not paid until February, 1899, when eight promissory notes, each for $250, were made by the plaintiff, indorsed by the deceased to the order of, and delivered to, the attorney for Simes. The remaining $1,000 of the purchase price was paid by the sum of $761.67 in cash withdrawn from the laundry business, and by the cancellation of $238.33 of indebtedness from Simes to the deceased. The notes subsequently were paid in whole or in part out of the profits of the laundry. The laundry business was conducted by the deceased, under the name of ‘Clarence F. Glover doing business as C. F. Glover & Co.’ and ‘Waltham Laundry, C. F. Glover & Co., Proprietors,’ until 1906. The plaintiff and the deceased were married in 1900 and lived together until his death in 1909. Books of account were opened in the name of the deceased. In August he bought the real estate to which the laundry was moued and upon which the business was conducted thereafter.

There is no incompatibility with other facts found in this finding that the deceased acted for the plaintiff and in her behalf in negotiating for her the purchase of the personal property on September 22. That finding means that the deceased negotiated the purchase of the chattels as agent for the plaintiff, who was the purchaser. The plaintiff at that time was possessed of some property; the deceased was worth substantially nothing. She was responsible for the purchase price. She was the maker of notes aggregating two-thirds of that price. Most of the cash paid was withdrawn from the profits of the business. The fact that she was named in the bill of sale as the vendee and took possession of the property in person in the presence of the vendor and of the deceased, and was maker of the notes, are facts of dominating significance in determining who was the purchaser. There is nothing inherently repugnant to the fact that she was in truth the purchaser and the owner of the business in the subsequent conduct of the deceased with reference to the property and business, he being her husband for the larger part of the time. It is not necessary further to review the findings of the master in this particular. See Briggs v. Sanford, 219 Mass. 572, 107 N. E. 436, and Hutchins v. Mead, 220 Mass. 348, 108 N. E. 67.

The circumstance that a part of the purchase price of the propertywas furnished by the deceased through the discharge of his debt against Simes does not cut down the effect of the main finding that the title passed to the plaintiff. Patterson v. Patterson, 197 Mass. 112, and cases collected at page 117, 83 N. E. 364.

The plaintiff had possession of the bill of sale and introduced it in evidence. The master found that it was delivered to her by the deceased. This finding is not irreconcilable with other facts found. It is in accordance with the presumption of propriety in conduct in the absence of evidence of surreptitious and unlawful appropriation. Collector of Taxes v. Rising Sun Street Lighting Co., 229 Mass. 494, 497, 118 N. E. 871.

The findings that the business after September 22, 1898, and before October 1 following was conducted by the deceased on behalf of the plaintiff and not for Simes & Co., and that from and after September 23 the receipts and disbursements of the business by the deceased were as agent for the plaintiff, are not repugnant to other facts found, but seem to follow naturally from the establishment of the main proposition that the plaintiff was the purchaser of the property by the bill of sale of September, 1898.

It must be taken as a fact that the purchase of the property was by the plaintiff and not by the deceased and that the business was at the first started and carried on by the deceased for the plaintiff. Thereafter, up to 1906 the deceased acted as if he were the owner of the business, and conducted it as though it were his own with the knowledge and acquiescence of the plaintiff, who was familiar in a general way with the books and the way in which he carried on the business. The finding of the master is that there was no actual gift or transfer to the deceased of the plaintiff's right and title to the property and business, and that she claimed from time to time that the business belonged to her. The facts do not show that the plaintiff relinquished her title to the property or the business, or conveyed it in any way to the deceased. Ownership by the plaintiff being once established, the natural inference is that, in the absence of facts showing the contrary, the ownership continued the same. In view of that fact, the acts of the deceased in respect of management and control of the property of his wife presumably were as agent for her and in her interest and behalf. Chace v. Chapin, 130...