Otis v. Freeman

• Citation: 85 N.E. 168,199 Mass. 160
• Parties: OTIS v. FREEMAN.
• Decision Date: 23 May 1908
• Court: United States State Supreme Judicial Court of Massachusetts

199 Mass. 160

85 N.E. 168

OTIS v. FREEMAN.

Supreme Judicial Court of Massachusetts, Norfolk.

May 23, 1908

COUNSEL

Herbert L. Baker W. F. Potter, and F. K. Rice, for appellant.

Andrew A. Highlands and Arthur E. Burr, for appellee.

OPINION

SHELDON J.

1. The plaintiff's motion to amend his bill was denied by the superior court, and he has appealed from that order. It would be a strange thing if, after bringing his bill for the purpose of establishing his title to and right of possession of the household furniture mentioned, and after obtaining an agreement of the parties that the title to the property should be tried in this action, he could at the same time and in the same bill seek to reach that furniture as the property of the defendant under the provisions of Rev. Laws, c. 159, § 3 cl. 7. Apart from the fact that this property so far as it was not exempt from attachment apparently could have been reached at law this liberty was rightly refused to the plaintiff.

2. It is difficult to see how upon the facts found by the master it could be said that the title to the furniture was in the plaintiff. The money with which the defendant bought it from time to time was a part of what he gave to her. None of this money was furnished to her by him for the specific purpose of buying furniture for his benefit. All the money which she expended for furniture the master has found was furnished to her by the plaintiff precisely as the money which she expended for other things was furnished to her by him--upon her asking for it, though without any express understanding or agreement between the parties as to whether it was a gift or a bailment; and the plaintiff admits that the other money which he furnished to her, except certain specific loans, was really a gift to her. Under these circumstances, it is not easy to see how he was harmed by any of the rulings of the master, or how any of his exceptions can be sustained.

3. But we do not deem it necessary to pass upon this question. The master has found, and as the evidence has not been reported this finding is conclusive, that the money supplied by the plaintiff to the defendant was for the purpose of inducing her to become and remain his mistress; and that she did so become and remain. This includes the money with which the furniture was bought and paid for. And the furniture itself bought with the money furnished for this unlawful end, was not...