Milne v. Burlington Homes, Inc.

• Decision Date: 24 October 1977
• Docket Number: No. 7709,7709
• Citation: 379 A.2d 198,117 N.H. 813
• Parties: Michael G. MILNE v. BURLINGTON HOMES, INC.
• Court: New Hampshire Supreme Court

Page 198

379 A.2d 198

117 N.H. 813

Michael G. MILNE v. BURLINGTON HOMES, INC.

No. 7709.

Supreme Court of New Hampshire.

Oct. 24, 1977.

Baker & Page of Lebanon (Ridler W. Page, Lebanon, orally), for plaintiff.

Stebbins & Bradley of Hanover (Daniel J. Connolly, Hanover, on the brief and John S. Stebbins, Hanover, orally), for defendant.

GRIMES, Justice.

The issues in this case are whether the trial court's ruling on a theory of law and use of a remedy not actually pleaded by the plaintiff constitutes reversible error and whether the facts support a finding of a constructive trust. These questions arise out of an action to recover damages based upon plaintiff's failure to receive from defendant a modular home which plaintiff had purchased. There was a trial before the court which rendered a decree in favor of plaintiff. Defendant's exceptions were transferred by Johnson, J.

The defendant, Burlington Homes, Inc. of St. Clair, Pennsylvania, is a manufacturer of modular homes. During April of 1974 defendant was contacted by one Gagliardi who was subsequently made a dealer of Burlington products. Shortly thereafter, plaintiff decided to purchase a home manufactured by the defendant and informed Gagliardi of his desire to do so. He made arrangements to obtain a lot and the home by financing the purchase price through the Federal Land Bank. Plaintiff ultimately received a check from the bank for the home in the amount of $13,500 made payable to plaintiff, his wife, and BEG Homes (one of various corporate names used by Gagliardi). Plaintiff acquired the necessary signatures for a proper indorsement and then sent the check accompanied with a letter notifying defendant to forego delivery until further instructions from plaintiff. Without consulting plaintiff, defendant shipped the modular home to Gagliardi upon instructions from him. Gagliardi subsequently caused the home intended for plaintiff to be delivered to Gagliardi's mother who encumbered it.

Plaintiff then sued in trespass on the case and assumpsit. The pleadings were amended once to conform to proof obtained through the discovery process and in substance alleged that the defendant was negligent in hiring Gagliardi, that defendant should be made a trustee of other funds that Gagliardi had transferred to defendant, concerning other transactions and that defendant had breached a contract for the sale of goods or had been guilty of negligence in disregarding delivery instructions. No count alleged that defendant should be made a trustee of funds that plaintiff had transferred to defendant. The trial court issued a decree ruling that defendant held $13,500 "under a constructive trust and that defendant breached this constructive trust by shipping the home under orders of Mr. Gagliardi."

Defendant first argues that the trial court exceeded its authority in returning a verdict for the plaintiff upon an equity theory of constructive trust when such theory was not pleaded. Defendant also asserts that it is entitled to be informed by plaintiff's pleading of the nature of the legal action. Morency v. Plourde, 96 N.H. 344, 345-46, 76 A.2d 791, 792 (1950). The question then becomes whether plaintiff's pleadings were of such a nature to adequately apprise defendant of the basis of the dispute. We hold that plaintiff's declaration possessed the necessary elements to notify defendant that plaintiff claimed that he was entitled to the money given to it by plaintiff. Allegations of pleadings are sufficiently clear if they are understandable by the court and counsel. Massachusetts Bonding Co. v. Keefe, 100 N.H. 361, 362-63, 127 A.2d 266, 267-68 (1956); RSA 514:8. There can be no argument that counsel for the defendant understood that the control and disposition of $13,500 was the point in issue.

Even though the action was one at law, if it is shown that the plaintiff is entitled to equitable relief instead of the relief sought, the form of action may be changed by amendment and the appropriate relief decreed. RSA 514:9. This court has interpreted RSA 514:9 and its predecessors to allow in a suit at law the filing of a bill in equity as an amendment to a pleading. Stebbins v. Lancashire Ins. Co., 59 N.H. 143 (1879); Metcalf v. Gilmore, 59 N.H. 417 (1879); Owen v. Weston, 63 N.H. 599, 604, 4 A. 801, 803 (1885). This state has long proceeded on the basis that the division line between equity and law is not precise and that trial courts have considerable discretion in determining whether equity should intervene to aid litigants in the protection of their legal rights. Exeter Realty Co. v. Buck, 104 N.H. 199, 200, 182 A.2d 469, 470 (1962); cf. Dandeneau v. Seymour, 117 N.H. ---, 374 A.2d 934 (1977).

Defendant also argues that the particular remedy fashioned by the trial court was not proper. Although there is no New Hampshire case decreeing a constructive trust on the exact facts alleged here, we think general equity principles support this result. A constructive trust will be imposed whenever necessary to satisfy the demand of justice since...