Kevorkian v. Moors

• Decision Date: 30 December 1937
• Citation: 299 Mass. 163,12 N.E.2d 111
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: ALEXANDER KEVORKIAN v. JOHN F. MOORS & others.

299 Mass. 163

12 N.E.2d 111

ALEXANDER KEVORKIAN v. JOHN F. MOORS & others.

Supreme Judicial Court of Massachusetts, Suffolk.

December 30, 1937

November 1, 1937.

Present: FIELD DONAHUE, LUMMUS, QUA, & DOLAN, JJ.

Equity Pleading and Practice, Rehearing.

No error was disclosed in action by a judge who, having heard a motion in a suit in equity that findings, rulings and an order for a decree which he had made be revoked, the hearing discharged and the suit reheard on its merits, found that a certain finding and ruling was erroneous, directed that it be struck out, stated that the correction did not affect his conclusion and, except for such correction, denied the motion.

BILL IN EQUITY filed in the Superior Court on October 8, 1934, and afterwards amended.

The suit was heard by Greenhalge, J. He filed a statement of findings, rulings and an order for a decree on January 9, 1936. A final decree was entered on October 5, 1936. The plaintiff appealed.

M. E. Goldberg, for the plaintiff.

C.

P. Curtis, Jr., for the defendants.

DOLAN, J. This is a suit in equity against the defendant copartners who are engaged in business as stockbrokers and dealers in securities under the firm name of Moors and Cabot. The plaintiff's bill as substituted and amended (hereinafter called the bill) contains eighteen paragraphs which allege in substance that from 1925 to 1934, the plaintiff on various occasions deposited moneys and securities with the defendants in trust to invest and reinvest for him, and gave them written authority to buy and sell for his account; that these instructions were disregarded and in many other particulars the defendants violated their duties toward him arising out of the fiduciary relationships alleged to exist between them that they had sold him securities in violation of G. L. (Ter. Ed.) c. 110A, including certain bank stock upon which he had been assessed $2,000, and had failed to account to him. The bill also recites a tender by the plaintiff which we deem it unnecessary to set forth in detail, and a repudiation of all transactions had between the plaintiff and the defendants. The prayers of the bill are that a trust be established, that illegal sales to the plaintiff be voided and fraudulent transactions with him rescinded, that the defendants be ordered to pay him the full purchase price of all securities they sold to him and the full value of all securities which they bought from him, with all interest and other charges made by them on or growing out of the transactions between them, and to indemnify him for all loss sustained by him in connection therewith. The defendants, answering, admitted that the plaintiff delivered cash and securities to them at various times and gave them written authority to buy and sell on his behalf, denied the other allegations of the bill, and pleaded that the plaintiff is barred by the statute of limitations as to certain of the complaints and as to all by laches. A stenographer was appointed in the Superior Court to report the evidence. After hearing, the judge on January 9, 1936, filed findings, rulings and order for a decree as follows: "I find the testimony of the plaintiff in this case to be untrustworthy and except when corroborated by other and independent evidence, I do not accept it. In respect of securities referred to in evidence as bought by or on account of, or sold to the plaintiff by the defendants, which do not appear to have been approved by the board of public utilities, I rule that the burden of proof was on the plaintiff to show that such approval was required by law, and find that such burden is not sustained. In all other respects I...