Nichols v. Rogers

• Decision Date: 25 March 1885
• Citation: 29 N.E. 377,139 Mass. 146
• Parties: NICHOLS v. ROGERS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

139 Mass. 146

29 N.E. 377

NICHOLS

v.ROGERS.¹

Supreme Judicial Court of Massachusetts, Suffolk.

March 25, 1885.

Appeal from superior court, Suffolk county; HOLMES, Judge.

Bill in equity, filed May 16, 1883, by William H. Nichols against Henry M. Rogers, praying that defendant be compelled to convey to plaintiff a certain interest in a mine, alleged to be held by defendant for the benefit of plaintiff and others. The original owners of the mine had executed a bond to convey it. This bond was assigned to William H. Nichols. Nichols agreed to sell certain shares to plaintiff and others, but became insolvent before he paid the owners, and then notified plaintiff and the other parties interested that they could negotiate directly with the owner. Thereupon plaintiff, defendant, and the others interested executed the following agreement in relation to the mine: “(1) To intrust to Henry M. Rogers the sole, absolute, and untrammeled control of our respective interests, authorizing him to distribute them as he from time to time may deem best, provided only that he reserves to us, respectively, some interest in the mine, or in the stock of the mine, provided the mine be put into a stock company. (2) The several sums of money paid or to be paid by us, respectively, to said Rogers, are to be used by him in such manner as his best judgment may approve. That such sums of money are not loaned to him, or received by him for any purpose but to try to save to us, respectively, some portion of the money or of the mine to which we are respectively entitled under our respective agreements with William H. Nichols. Should such sums of money as have been or are to be paid to said Rogers be lost by him, he is in no event to be held personally responsible therefor. (3) The said Rogers shall be entitled to receive from the shares of mine or money obtained by him a reasonable compensation for his time and services. (4) The said Rogers, in consideration of the premises, agrees with the parties hereto, and with each of them, to use his best energy, skill, and judgment to bring to a successful result the recovery of the mine or the money of the parties hereto, and obtain for them substantial and positive benefits from his labors in the premises.” The bill alleged that defendant secured and held four-fifths of the mine, less one-tenth, which he had sold to another person; that plaintiff had contributed one-third of the purchase money, and that he had requested defendant to account and convey to him his share, which defendant refused to do. On January 24, 1884, the bill was amended by alleging that it was not intended by the agreement that the defendant should have the right to hold and operate the mine, but only that he should secure it, and then convey to the parties interested their respective shares; and further, that defendant had bought one-tenth of the mine from another, paying therefor $1,300, and one-tenth of the same mine; and that he claimed to hold this tenth for his own use, though it was paid for out of the funds contributed by plaintiff and the others; and that defendant had acted fraudulently and in bad faith. A demurrer to the bill for want of equity was sustained. Plaintiff appeals to the full court. Bill dismissed.A.E. Pillsbury, for appellant.

R.M. Morse, Jr., for appellee.

C. ALLEN, J.

The bill in this case was filed in less than six months after the date of the agreement. It may be assumed, since it is not disputed, that under the agreement the defendant became a trustee, and that he is, or at a proper time will be, accountable as such. But the agreement vested in him large powers and a wide discretion, and fixed no time within which the trust should be executed. The service which the defendant assumed might well require...