Jubinville v. Jubinville

• Decision Date: 27 January 1943
• Citation: 46 N.E.2d 533,313 Mass. 103
• Parties: JUBINVILLE v. JUBINVILLE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

313 Mass. 103

46 N.E.2d 533

JUBINVILLE

v.JUBINVILLE et al.

Supreme Judicial Court of Massachusetts, Hampden.

Jan. 27, 1943.

Appeal from Superior Court, Hampden County; Broadhurst, Judge.

Bill in equity by Zenaide Jubinville, executrix, against Antonio Jubinville and others, for adjudications as to ownership of assets of liquor package store business conducted by plaintiff's testator under a license issued to testator and his son, for an order directing defendants to surrender to licensing authority liquor license granted to them in connection with the business, and to enjoin defendants from interfering with application that plaintiff or her nominee may make for issuance of a license to conduct the business. From a final decree in favor of plaintiff, defendants appeal.

Order in accordance with opinion.J. F. Hartnett and O. D. Rainault, both of Holyoke, for Zenaide Jubinville, plaintiff.

J. H. Mulcare, of Springfield, and W. W. Buckley, of Southbridge, for defendant.

Before FIELD, C. J., and DONAHUE, LUMMUS, QUA, DOLAN, COX, and RONAN, Jj.

RONAN, Justice.

A master has found that the plaintiff's testator, who was her husband, had owned and conducted a liquor package store, in Holyoke, for three years prior to his death in December, 1936, first under a license issued to him and his son Joseph Jubinville, and then, since 1935, under a license issued to him and another son, the defendant Antonio; that since the death of his father, Antonio has conducted the business under a license to himself and later to himself and his wife, the other defendant; that the testator at the time of his death was the sole owner of the business and the license; that the stock in trade, fixtures, automobiles, and a certain checking account standing in the name of the defendant Antonio belong to the estate of the testator. He also found that there was not undue delay by the plaintiff in asserting her claim and in bringing the bill in equity, and that there was no change of position of the defendants because of any alleged delay. He found that the plaintiff was not guilty of laches. His report was confirmed in the Superior Court. The defendants appealed from a final decree adjudging the plaintiff to be the owner of the assets of the said business ordering the defendants to surrender to the licensing authority the liquor license granted to them to conduct said business, and enjoining them from interfering with any application that the plaintiff or her nominee might make to the licensing authority for the issuance to her of a license to conduct said business.

The defendants took no appeal from the interlocutory decree overruling their exceptions to the master's report and confirming the report, and the appeal from the final decree, which does not appear to have been erroneously affected by the interlocutory decree, presents the question whether the final decree is within the scope of the bill and is supported by the facts found by the master. Carter v. Sullivan, 281 Mass. 217, 183 N.E. 343;Regan v. Tierney, 306 Mass. 168, 27 N.E.2d 698.

The defendants contend that the master was wrong in finding that the business was owned by the estate. This finding was made upon unreported evidence. It does not appear from the report to be based solely upon the subsidiary findings of the master. It is not inconsistent with these subsidiary findings and must be accepted as true. Dodge v. Anna Jaques Hospital, 301 Mass. 431, 17 N.E.2d 308;Zak v. Zak, 305 Mass. 194, 25 N.E.2d 169;Elias v. Steffo, 310 Mass. 280, 37 N.E.2d 991.

The answer set up laches as a defence and the burden of establishing it was upon the defendants. Alvord v. Bicknell, 280 Mass. 567, 182 N.E. 848;Fortier v. H. P. Hood & Sons, Inc., 307 Mass. 292, 30 N.E.2d 253. Ordinarily, that burden is not sustained by showing mere delay that does not work some form of prejudice or harm to a defendant. Morse v. Hill, 136 Mass. 60;Shea v. Shea, 296 Mass. 143, 4 N.E.2d 1015;Ferrone v. Rossi, 311 Mass. 591, 42 N.E.2d 564. The facts found by the master do not demonstrate that the defendants were injured by the failure of the plaintiff to urge and prosecute her claim sooner than she did. Moreover, there is nothing in the report inconsistent with the ultimate finding of the master that the plaintiff was not guilty of laches. Safford v. Lowell, 255 Mass. 220, 151 N.E. 111;Westhampton Reservoir Recreation Corp. v. Hodder, 307 Mass. 288, 29 N.E.2d 913;Albano v. Puopolo, 309 Mass. 501, 36 N.E.2d 398.

The remaining contention of the defendants is that there was error in the third paragraph of the final decree, ordering them to surrender their license for cancellation to the licensing authority, and restraining them from interfering with any efforts of the plaintiff or her nominee to secure a similar license and from filing any objections with the licensing authority to granting such a license. It is admitted that the defendant Marie Jubinville has no interest in the business or in the license, which was issued in her name and in that of the defendant Antonio, her husband, so that, in case of his death, the license would not be ‘thrown open to the public.’ We need consider, therefore, only the relation of Antonio to the license so far as it concerns the plaintiff's right as owner of the licensed business. This defendant's father, the owner of the business, suffered a shock in the fall of 1935 and thereafter, except at times when the father was able to attend to his business, the defendant conducted the business in behalf of his father. All deposits from the business were made by him in his own name as they were before his father's illness. His supervision and control over the business increased as his father's health began to wane. The business was entrusted to him and he occupied a relation of trust and confidence to his father. Sometime after the death of the latter, instead of running the business for the benefit of his father's estate, he claimed the business as his own. As a trustee he must account for all the property of the estate in his possession and, in so far as he can, must put the estate in the same condition as that in which it would have been if he had not repudiated his relation as employee and wrongfully assumed the position of owner. Cushman v. Noe, 242 Mass. 496, 136 N.E. 567;Putnam v. Scahill, 266 Mass. 537, 165 N.E. 673;Cann v. Barry, 293 Mass. 313, 199 N.E. 905.

A liquor license once granted does not run with the business. It is a nontransferable personal privilege, revocable at pleasure, and conveying no vested interest to the licensee. G.L.(Ter.Ed) c. 138, § 23, inserted by St.1933, Ex.Sess., c. 376, § 2, as amended by St.1935, c. 253, § 5, c. 440; § 23; St.1938, c. 238; St.1939, c. 470, § 2. See now St.1941, c. 578. A package store, so called, cannot be conducted without a license. G.L.(Ter.Ed.) c. 138, § 15, as inserted by St.1933, Ex.Sess., c. 376, § 2, as amended. While such a license is not an asset of the business which passes upon its sale, yet such a license has been considered by purchasers of such a business as something of value in excess of the license fee on account of the preferences which, under both the previous and the present statutes, R.L. c. 100, G.L. (Ter.Ed.) c. 138, § 16A, as inserted by St.1933, Ex.Sess., c. 376, § 2, and as most recently amended by St.1937, c. 424, § 1, the purchaser acquires in the renewal of such a license, even though the present law, by section 23, of said c. 138, as amended, makes provision for increasing the license fee so that any excess will go into the public treasury rather than to the vendor. See F. & M. Schaefer Brewing Co. v. Koebs, 187 Mass. 571, 73 N.E. 858;Tracy v. Ginzberg, 189 Mass. 260, 75 N.E. 637; affirmed, 205 U.S. 170, 27 S.Ct. 461, 51 L.Ed. 755;Ellis v. Small, 209 Mass. 147, 95...