Graustein v. Dolan

• Decision Date: 14 April 1933
• Citation: 282 Mass. 579,185 N.E. 489
• Parties: GRAUSTEIN v. DOLAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

282 Mass. 579

185 N.E. 489

GRAUSTEIN

v.DOLAN et al.

Supreme Judicial Court of Massachusetts, Middlesex.

April 14, 1933.

Appeal from Superior Court, Middlesex County; Gray, Judge.

Action by Adolf H. Graustein against Harry F. R. Dolan and others. From a decree dismissing the bill, plaintiff appeals.

Affirmed.

W. A. Graustein, of Cambridge, for appellant.

J. H. Morson, of Boston, for appellees.

LUMMUS, Justice.

The Maple Farm Milk Company, a Massachusetts corporation, on September 1, 1927, sold all its assets, except accounts receivable and choses in action, to H. P. Hood & Sons, Inc. for the price of $22,200. As a part of the transaction the plaintiff discharged a chattel mortgage held by him upon some of the assets. The Maple Farm Milk Company (the seller) and the plaintiff as mortgagee agreed in writing with the buyer on the same day that the entire price might remain in the hands of the defendant Dolan for fifteen days for the purpose of making adjustments in favor of the buyer for property bought that might fail of delivery. At the same time another instrument was signed by the seller, the buyer, and the defendant Dolan, whereby the seller agreed to deposit $2,000 with the defendant Dolan to enable him to pay the conditional vendors of certain trucks included in the sale. At the same time, also, the seller assigned to the plaintiff all its accounts receivable and choses in action, and the trial judge ruled that the assignment included its claim for the purchase price of the sale.

The defendant Dolan received $22,413.02 in all under the instruments just described, and deposited the money in the bank account of Dolan, Morson & Stebbins, the law firm of which he was a member. He used $1,790.80 to pay off the conditional vendors, $36.75 for expenses, and paid the plaintiff $16,094.97, leaving a balance of $4,490.50. The plaintiff attacks only the disposition of this balance. The trial judge found that on September 1, 1927, ‘while the documents hereinbefore referred to were being discussed and prepared and before their execution’ the seller and the plaintiff orally authorized the defendant Dolan, out of the purchase price which was to be in his hands, to pay certain debts of the seller, amounting to $703.95, and to pay a debt of the seller to Dolan, Morson & Stebbins for legal services and expenses, amounting to $3,786.55, and that these payments were made. If these payments were lawfully made, no balance remains to be accounted for. The case is here upon the plaintiff's appeal from a final decree dismissing his bill with costs.

The bill alleges that the defendant Dolan ‘has stated under oath in court that he had paid to the law firm of Dolan, Morson & Stebbins * * * the sum of * * * $3,786.55 of aforesaid fund without authority or order.’ The answer of the defendant Dolan admits that he ‘stated under oath’ that he made such payment ‘without consulting the complainant with relation thereto,’ and sets up in another paragraph a direction from the seller to pay the law firm and certain other creditors. In this situation the plaintiff contends that the finding that the plaintiff authorized these payments is without effect because contrary to the admission in the answer just recited. See Bancroft v. Cook, 264 Mass. 343, 348, 162 N. E. 691, and Calnan v. Guaranty Security Corp., 271 Mass. 533, 541, 171 N. E. 830; compare with the latter case the changes made by Superior Court rule 29 (1932). But in respect to the authority given to the defendant Dolan the bill set forth improperly an evidential admission of a fact, rather than the fact itself (G. L. [Ter. Ed.] c. 214, § 12; Taylor v. Neal, 260 Mass. 427, 439, 157 N. E. 646;Christiansen v. Dixon, 271 Mass. 475, 171 N. E. 451), and the answer admitted the making of the admission rather than the fact. Accordingly, the contrary fact found by the judge did not contradict the answer. The admission by the defendant Dolan as a witness at the trial of another case, that he paid his law firm $3,786.55 without authority from the plaintiff, did not prevent him from asserting and demonstrating in this case that his former testimony was mistaken. Upon this bill, which was for an accounting, the defendants could show any proper disposition of the fund not closed to them by the answer. Goldthwait v. Day, 149 Mass. 185, 21 N. E. 359;Braman v. Foss, 204 Mass. 404, 411, 412, 90 N. E. 563. The instrument under which the bulk of the purchase price was held was silent as to its ultimate disposition, no one was interested in that except the seller and the plaintiff, the defendant Dolan was not a party to the instrument, and no violation of the parol evidence rule was involved in the decision that a disposition of the fund in accordance with contemporaneous oral directions from the seller and the plaintiff discharged all liability.

In addition to claiming an appeal from the final decree, the plaintiff claimed an appeal from the ‘findings, rulings and order for decree’ dismissing the bill with costs, filed on June 20, 1932. This was not the final decree, but an order for the entry of the final decree entered on July 1, 1932. Churchill v. Churchill, 239 Mass. 443, 445, 446, 132 N. E. 185. Neither was it in...