Knowlton v. Fourth-Atlantic Nat. Bank

• Citation: 171 N.E. 721,271 Mass. 343
• Parties: KNOWLTON v. FOURTH-ATLANTIC NAT. BANK et al.
• Decision Date: 04 June 1930
• Court: United States State Supreme Judicial Court of Massachusetts

271 Mass. 343

171 N.E. 721

KNOWLTON

v.FOURTH-ATLANTIC NAT. BANK et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 4, 1930.

Appeal from Superior Court, Suffolk County; Sanderson, Judge.

Suit by one Chamberlain for whom on his death was substituted his executrix, Jessie A. Knowlton, against the Fourth-Atlantic National Bank and others. Decree for plaintiff, and the named defendant appeals.

Modified, and, as so modified, affirmed.

R. B. Owen and E. R. Anderson, both of Boston, for plaintiff.

R. C. Murchie, of Concord, N. H., and H. R. Bailey, of Boston, for defendants.

SANDERSON, J.

This suit was first brought to this court by report at the request of all parties upon the pleadings, three reports of the master, exceptions thereto, and appeals from interlocutory decrees and orders, ‘Such final decree is to be entered as the plaintiff upon the record is entitled to.’ By the rescript in that case the interlocutory decree overruling the exceptions of all parties and confirming the report was affirmed in all respects except as to the defendants'exception numbered two, and as to that the decree was reversed. The bill was ordered to be dismissed with costs as to all defendants other than the Fourth-Atlantic National Bank, and as to it the case was remanded to the Superior Court for further proceedings not inconsistent with the opinion. 264 Mass. 181, 162 N. E. 356. The exception referred to was to the exclusion of testimony of Chamberlain's attorney relating to statements made to him by his client. After rescript two decree were entered, the first dismissing the bill as against the defendants Breck individually, Breck-Robinson Nursery Company and Joseph Breck and Sons Corporation, and the second ordering that the case be recommitted to the master to hear the testimony previously excluded and to report his findings respecting the liability of the defendant and also to report the evidence received on this last recommittal. It was further decreed that if ‘the Fourth-Atlantic National Bank, is liable to the plaintiff, then the Master's account of the damages already found by him in his former report shall stand.’ The bank, which will be referred to as the defendant, appealed from both of these decrees.

The master, after hearing testimony in compliance with the order of recommittal and considering it by itself and also in connection with all of the evidence in the case, reaffirmed the findings made by him in his earlier report and adopted them as his findings. To this report port the defendant saved two exceptions, (1) that upon all the evidence the findings of the master are incorrect, and (2) that upon all the evidence the master should have found that the plaintiff Chamberlain and the executrix of his will have failed to show that any contract was entered into between Chamberlain and the defendant. These exceptions were overruled and a final decree entered in favor of the plaintiff. From both of these decrees the defendant appealed.

The master in one of his earlier reports made specific fincings as to the contract between Chamberlain and the defendant, and in accordance with the oredr of court reported so much of the evidence as bore on those matters. But the case first came to this court in accordance with the agreement of all parties without this evidence. One of the exceptions then saved by the defendant and appearing in the previous record was to the refusal of the master to find that no contract was entered into between Chamberlain and the defendant. The consent of the defendant to have the case reported without the evidence on that issue was a waiver of the contention that there was no sufficient evidence of a contract between Chamberlain and the bank in so far as it depended on the evidence made a part of the master's earlier report. Tillson v. Crane Brook Co. (Mass.) 169 N. E. 512. But now, in view of the fact that the master has heard additional evidence to be weighed with that previously considered by him, the question will be decided upon the evidence before the court in the present record although the additional evidence bore only on the weight to be given to Chamberlain's testimony. See Malden & Melrose Gas Light Co. v. Chandler, 211 Mass. 226, 227, 97 N. E. 906. The findings of the master are not to be set aside unless plainly wrong. When he has heard oral testimony his decision as to the weight to be given to it is seldom disturbed. Parsons v. Parsons, 230, Mass. 544, 552, 119 N. E. 1020.

We have examined all of the evidence in the present record and are of opinion that it amply warranted the finding that a contract was made between Chamberlain and the defendant acting through its authorized agent in the terms set forth in 264 Mass. at pages 189 and 190,162 N. E. 358. No good purpose would be served by reciting or summarizing this evidence. The contradictions in testimony and the other matters to which our attention has been directed by the defendant do not show that the master was wrong in his conclusion on this issue or justify us in reaching a different conclusion. Under the contract made the defendant ‘held the legal title to the bullbs upon a trust for the purpose of liquidating the debt of the plaintiff to it, of reimbursing itself for the expenses of the plan, and of eventually returning the bulbs unsold and any surplus money realized from the sale of bulbs.’ 264 Mass. 181, 194, 162 N. E. 356, 360.

The defendant further contends that if a trust was created it is not liable for any breach thereof; that it acted in good faith with sound business judgment in appointing an agent to cultivate and dispose of the bulbs, and that it should not be held liable for negligence or wrongdoing of such agent. On this phase of the case all the evidence does not purport to be...