Lasquade v. Lippa

• Decision Date: 12 January 1948
• Citation: 322 Mass. 287,76 N.E.2d 753
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: GEORGE F. LASQUADE, conservator, v. SAMUEL LIPPA & others.

322 Mass. 287

76 N.E.2d 753

GEORGE F. LASQUADE, conservator, v. SAMUEL LIPPA & others.

Supreme Judicial Court of Massachusetts, Suffolk.

January 12, 1948

December 5, 1947.

Present: QUA, C.

J., LUMMUS, DOLAN WILKINS, & SPALDING, JJ.

Contract, Building contract. Payment. Volunteer. Conservator. Equity Pleading and Practice, Parties.

The plaintiff in a suit in equity by a landowner against a contractor involving an accounting on building contracts had no ground to claim error in the final decree in that it did not give him relief for certain breaches of contract by the defendant beyond allowances for work not performed where it appeared that he voluntarily had paid the defendant his full contract prices by mortgage notes given by him to the defendant without fraud, concealment or compulsion on the defendant's part.

The proper party plaintiff in a suit in equity brought by a conservator in behalf of his ward is the ward.

BILL IN EQUITY filed in the Superior Court on January 30, 1947. The case was heard by Cabot, J.

In this court the case was submitted on briefs.

I. M. Davis &amp C.

L. Moriarty, for the plaintiff.

W. R. Gilman &amp S.

S. Cross, for the defendant Lippa.

LUMMUS, J. The plaintiff, as the conservator of the property of Joanna Gearrin of Malden, a widow eighty-two years of age, brings this bill against Samuel Lippa, Samuel B. Flashman and United States Trust Company. Averments in the bill were as follows In the latter part of 1945 Joanna Gearrin entered into three contracts with the defendant Lippa, by which he was to work upon her real estate in Malden. One was dated September 20, 1945, and related to real estate at 43-45 Franklin Street, and the price for the work was $6,500. Another, dated December 14, 1945, was for additional work to be done on the same real estate at a price of $3,000. The third, dated December 18, 1945, was for work to be done at 26 Franklin Street at a price of $2,500.

Mortgage notes and mortgages, covering various parcels of land in Malden, in the amounts of the several building contracts, were given at about the times of these contracts by Joanna Gearrin to the defendant Lippa, and were by him assigned to the defendant Flashman, and by the defendant Flashman were assigned to the defendant United States Trust Company.

The bill further sets forth that the defendant Lippa undertook to manage the real estate for Joanna Gearrin, but has failed to account. The bill further alleges that said Lippa and Flashman by fraud caused said Gearrin to give a mortgage note and mortgage to Codman Cooperative Bank for $3,000, and divided the proceeds between themselves, and further that said Lippa and Flashman obtained from said Gearrin a deed conveying the real estate at 43-45 Franklin Street to said Lippa. The bill alleges that at the times of all these transactions Joanna Gearrin was incompetent and acted because of the fraud and trickery of Lippa and Flashman.

After a hearing, the Superior Court entered a final decree, giving certain relief to the plaintiff, from which the plaintiff appealed. The case comes here upon a voluntary report of the material facts, without any report of the evidence.

The judge found that Joanna Gearrin, at the times of the transactions in question, was mentally competent, although at the time of the hearing she was incapable of caring for her property. He found that no fraud or trickery was practised upon her. He found that Flashman and United States Trust Company were holders in due course of the mortgage notes and mortgages, without notice of any infirmity. He found that the mortgage and note for $3,000, dated December 18, 1945, was paid off by the proceeds of a new mortgage covering 26 Franklin Street and running to Codman Cooperative Bank.

The judge found that Lippa owes Flashman $6,990.69, plus interest to April 24, 1947, of $550.80, and that Flashman holds mortgage notes as security for this indebtedness and subsequent interest.

He found that the two contracts for work at 43-45 Franklin

Street were fully performed by Lippa, except for two radiators which he was unable to furnish, and that a reasonable deduction for the omitted work would be $50.

He found that Lippa deliberately failed to paint and paper the second floor at 26 Franklin Street, and that the omitted work was fairly worth $200. Doubtless recovery could not be had by Lippa for work done under that contract. Russo v. Charles I. Hosmer Inc. 312 Mass. 231 , 233. But Lippa was paid in full for the whole work at...