Larson v. Sylvester

• Decision Date: 29 March 1933
• Citation: 282 Mass. 352
• Parties: CARL LARSON v. RALPH P. SYLVESTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

282 Mass. 352

CARL LARSON v. RALPH P. SYLVESTER.

Supreme Judicial Court of Massachusetts, Middlesex.

March 29, 1933

February 7, 1933.

Present: RUGG, C.

J., CROSBY, WAIT DONAHUE, & LUMMUS, JJ.

Equity Pleading and Practice, Exceptions, Decree, Appeal. Contract, What constitutes, With trustee. Trust, Personal liability of trustee. Practice, Civil, New trial.

Under G. L. (Ter Ed.) c. 214, Section 25A, it was proper to enter a final decree in a suit in equity in accordance with the finding of a jury upon an issue framed for trial by jury, although there then had not been final disposition of a bill of exceptions saved at that trial.

The trustee of a trust established by a declaration of trust in writing, the beneficial interest under which was divided into transferable shares, could be held liable personally in a suit in equity to establish a claim for labor and materials furnished by the plaintiff upon property which the defendant held as trustee if the defendant had not stipulated with the plaintiff that the plaintiff was not to look to the defendant personally for payment but only to the property of the trust, although the plaintiff knew that the defendant was acting as trustee and not personally and although the trust as an entity could have been sued at law by the plaintiff under G. L. (Ter. Ed.) c 182, Sections 1, 6.

Said statute making possible an action at law against the trust did not create a presumption that the plaintiff accepted the trust, rather than the trustee, as the party liable.

Evidence, that, in the absence of the plaintiff above mentioned, his son, who was left in charge of his business, undertook work for which compensation was claimed; that the plaintiff on his return spoke with the defendant, who told him he was having such work done because a tenant wanted it done; and that the plaintiff kept on and finished the job, warranted an inference that the defendant had ordered the work and was sufficient to entitle the plaintiff to recover therefor.

BILL IN EQUITY, filed in the Superior Court with a common law writ dated October 30, 1929, against Ralph P. Sylvester and Ella J. Langley, to reach property of the defendant Sylvester not attachable at law and apply it to the satisfaction of a claim for labor and materials.

An issue as to the amount owed by the defendant Sylvester to the plaintiff was framed for trial by jury. The issue was tried before Beaudreau, J. Material evidence and portions of the judge's charge to the jury are stated in the opinion. The jury found for the plaintiff in the sum of $1,912.09. The defendant Sylvester alleged exceptions. By order of Broadhurst, J., there were entered an interlocutory decree dismissing the bill as against the defendant Langley, the defendant Sylvester having filed a bond to dissolve an attachment; and a final decree ordering the issuance of execution against the defendant Sylvester for the amount found by the jury to be due from him to the plaintiff. That defendant appealed.

The defendant Sylvester's contention in his brief before this court with regard to the item under date of "Feb. 15, 1929," mentioned in the opinion, was as follows: The "plaintiff testified about this item . . . [and] says that he had no conversation with the defendant about this job; that he was away at the time the work was started. . . . The plaintiff's son did not testify in regard to this item. On this state of the evidence, there was nothing upon which to base a finding that the defendant personally or otherwise ordered this work done, or agreed to pay for the same. To allow the plaintiff recovery for this item would be a recovery based on pure speculation. . . . [There was] no direct testimony, nor any evidence from which a reasonable inference can be drawn, that the defendant ordered this item, or asked to have any such work performed. There is no evidence that the defendant ratified the doing of the work after it had been done, or agreed to pay for it. The court in its charge referred to this item twice. The first reference . . . is as follows: `I believe this particular feature of this count is denied by the defendant in that he did not order the work, and the plaintiff, I believe, said it was done at the request of his son, or at least he went there, or something to that effect.' The second reference occurs . . . where the court says: `. . . and likewise the other repairs amounting to, I believe, $494 and some cents, which he says were made at the request of the defendant but which the defendant denies having requested, and the plaintiff testified, I believe, that he was out of town and his son undertook to do the work . . . .' In both of these references to this item we have inaccurate statements by the court to the jury. The first one that the plaintiff claimed the work was done at the request of his son, and the second that the defendant claimed the items of $494 were all disputed on the same ground. While, of course, the evidence is for the jury and not for the court, such inaccurate statements might easily confuse a juror's mind, and certainly in no way leave the issue raised by the defendant's request clearly to the jury. The defendant was entitled to have the court instruct clearly on the issue involved in this count of the plaintiff's bill. No part of the charge to the jury properly discussed the questions raised by the defendant in regard to these items, and since the plaintiff failed to produce positive evidence to sustain his burden of proof or failed to produce evidence from which the jury could reasonably infer liability, this part of the plaintiff's case fell and the defendant's request should have been granted."

C. S. Walkup, Jr., (J.

B. Sly with him,) for the defendant.

A. M. McDonough, for the plaintiff.

WAIT, J. This is a bill in equity to reach an interest, not attachable at law alleged to belong to the defendant Sylvester, and to apply it in payment of debts alleged to be due from him, $494.15 for work performed and materials furnished in the nature of extra work, and $1,200, a balance upon contracts for painting certain houses at Winchester. An issue framed for a jury, "How much money, if any, does the defendant, Ralph P. Sylvester owe the plaintiff?" was answered: "$1,912.09." Exceptions were claimed at the trial of the issue to the judge's refusal to give certain instructions and to portions of his charge. Motion for new trial was denied and exception claimed thereto. The bill alleging the exceptions was allowed on November 21, 1932. Before that day the court, on the plaintiff's motion, ordered a final decree adjudging Sylvester indebted to the plaintiff in $1,912.09 with interest from the date of the verdict and authorizing execution to issue therefor with costs. Sylvester had given bond to dissolve any attachment, and interlocutory decree entered dismissing the bill against the other defendant. Final decree was entered on November 30, 1931. The defendant appealed. Appeal and bill of exceptions are before us.

The defendant's contention that there was error in the entry of final decree before final disposition of the bill of exceptions is not sound. St. 1926, c. 177, now G. L. (Ter. Ed.) c. 214, Section 25A, regulated the practice in this respect by enacting that "In suits in equity a final decree shall be entered although exceptions have been taken or a bill of exceptions has been filed and allowed, but execution and operation of the decree so entered shall be stayed until the exceptions have been disposed of unless the judge who made the ruling to which the exception or exceptions were taken finds that the exceptions are immaterial, frivolous or intended for delay." This language is imperative. It contains no suggestion that it is not applicable to exceptions taken at a trial of issues sent by an equity court to be tried by a jury sitting in a law session. The statute, entitled "An Act regulating practice as to exceptions in suits in equity," was, manifestly, intended to settle the matter by the use of language applicable to exceptions, wherever claimed, which might, but for the act, delay the entry of final decree. Nothing in Witherington v. Eldredge, 264 Mass. 166 , supports a different conclusion. The appeal is not well taken.

The evidence at the trial of the issue was conflicting on the question whether the plaintiff had contracted with Sylvester as trustee of the Winchester Building Trust, a trust established under a written declaration, the beneficial interest under which was divided into transferable shares, looking to the trust as the responsible party, or with him in his individual capacity and on his personal responsibility. There was evidence that the buildings in reference to which the contracts were made and the work and labor were furnished were held by Sylvester as trustee of the Winchester Building Trust. The defendant requested that the judge instruct the jury: "3. If the jury shall find as a fact that the defendant acted as trustee of the Winchester Building Trust in connection with the claims set forth in the plaintiff's bill of complaint and not individually and that the plaintiff knew or reasonably should have known this fact, he is not liable and the jury's finding must be that there is nothing due from the defendant to the plaintiff." The judge refused. He instructed...