E. Kronman, Inc. v. Bunn Bros., Inc.

• Decision Date: 07 January 1929
• Citation: 163 N.E. 711,265 Mass. 549
• Parties: E. KRONMAN, Inc., v. BUNN BROS., Inc., et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

265 Mass. 549

163 N.E. 711

E. KRONMAN, Inc.,

v.BUNN BROS., Inc., et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 7, 1929.

Appeal from Superior Court, Suffolk County; James H. Sisk, Judge.

Suit by E. Kronman, Inc., against Bunn Bros., Inc., Florence G. Mahoney, Federal National Bank of Boston, and Mark Levine. Decree for plaintiff, and the last three named defendants appeal. Affirmed.

C. A. McCarron and J. M. Hogan, both of Boston, for appellants.

S. B. Stein and F. R. Cohen, both of Boston, for appellee.

SANDERSON, J.

This is a bill in equity entered March 5, 1925, in which the plaintiff seeks to enjoin the defendant Mahoney from selling on foreclosure proceedings or otherwise certain personal property alleged to have been sold by the plaintiff to the defendant Bunn Bros., Inc., on conditional sale, reserving title in the plaintiff until payment was made. A restraining order was issued and on further hearing an interlocutory decree was entered March 6, 1925, dissolving the restraining order, directing the defendant Mahoney to give a bond conditioned to reimburse and compensate the plaintiff for any loss or damage sustained by it in the foreclosure of the mortgage by reason of the sale of the personal property described in the bill of complaint, and ordering the plaintiff to give the defendant Mahoney a bond conditioned to pay her any loss occasioned by the present proceedings if she should prevail. Mahoney represents the defendant bank and has no interest in the matter at issue. She will be referred to as the defendant.

The case was sent to a master to report his findings together with such facts and questions of law as either party may request. Upon the coming in of the report a single justice made additional findings of fact, and an interlocutory decree was entered overruling exceptions and confirming the report, from which the defendant appealed. Thereafter a final decree dismissing the bill was entered from which the plaintiff appealed. By decision of this court reported in 258 Mass. 562, 155 N. E. 426, a rescript was entered reversing the final decree and ordering the cause to stand for further proceedings in conformity with the opinion. On March 7, 1925, the defendant sold all the property referred to in the bill of complaint, except the oyster bar and equipment mentioned in section three of the bill.

The defendant's contention, that the only question decided by the previous appeal related to the propriety of dismissing the bill because the plaintiff had not asked to have it amended, cannot be maintained. By that appeal it was settled that the plaintiff was entitled to have its title to the property established as between it and the defendants; that as to the plaintiff's property sold by the defendant the plaintiff was entitled to have damages assessed as for a conversion, and that these rights could be established upon the allegations of the bill without amendment. Donohue v. White, 247 Mass. 479, 142 N. E. 692. The plaintiff's title to all the property described in the agreements annexed to the bill of complaint, filed March 5, 1925, was put in issue by the pleadings. It appeared from the former decision that there was a part of it of which the defendant did not take possession. Upon the pleadings and the issues tried, the plaintiff was entitled to damages for being wrongfully deprived of the property sold and to have its title established to the rest of the property. The rescript interpreted in the light of the opinion, which was specifically referred to as establishing the rule to be followed in future proceedings in the case, ordered that these two things should be done. The decree from which the present appeal was taken conforms to the order of this court by establishing the plaintiff's title to the property of which the defendant did not take possession, and awarding damages as to the rest. C. W. Hunt Co. v. Boston Elevated Railway, 217 Mass. 319, 104 N. E. 728;King v. Connors, 223 Mass. 305, 111 N. E. 848. The questions which were or might have been raised by the defendant on the former appeal if not then argued were waived. They cannot now be considered. Cohen v. Nagle, 190 Mass. 4, 13, 76 N. E. 276 [2 L. R. A. (N. S.) 964,5 Ann. Cas. 553];Lyons v. Elston, 211 Mass. 478, 482, 98 N. E. 93; King v. Connors, supra; Curran v. Magee, 244 Mass. 1, 5, 138 N. E. 1;Edgecomb v. Edmonston, 258 Mass. 568, 155 N. E. 599. The defendant cannot now contend that she has not wrongfully converted the plaintiff's property by selling it at the foreclosure sale.

In the former report the master did not fix the amount of the plaintiff's damages and a further hearing was therefore necessary. The case was referred to the same master for ‘assessment of damages as for a conversion of the property sold after the bill was filed.’ This order was authorized by the former decision of this court. Exceptions to the supplemental report numbered one to nine relate in part to findings upon evidence not reported. There was no reversible error in the finding relating to matters arising after the conversion, even if some of them were not sufficiently related to the decision to be material. Montague v. Boston & Albany Railroad, 124 Mass. 242, 249. The...