Peteros v. Peteros

• Decision Date: 28 February 1952
• Citation: 328 Mass. 416,104 N.E.2d 149
• Parties: PETEROS v. PETEROS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 149

104 N.E.2d 149

328 Mass. 416

PETEROS v. PETEROS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 2, 1951.

Decided Feb. 28, 1952.

P. L. Keenan, Boston, J. J. Gavin, Boston, for plaintiff.

J. G. Schumb, Boston, for the defendant, Hariclea Peteros.

Before QUA, C. J., and WILKINS, SPALDING, WILLIAMS and COUNIHAN, JJ.

QUA, Chief Justice.

This is a suit in equity by a husband against his wife, her brother, and others who were added as defendants after the coming in of the master's report, as hereinafter appears. In the Superior Court the bill was dismissed. The husband appeals.

In rough outline the bill alleges that the husband owns and for many years personally operated a store in the Jamaica Plain district of Boston; that in August, 1943, and thereafter until July, 1947, he was confined in hospitals for mental patients; that upon his confinement the wife took over the store and continues in control and possession; that she has failed to account for the profits of the business and refuses to return the store to the plaintiff; that she has procured a lease of the store premises to be made to herself and, without notice to the plaintiff or to his then guardian, has given to her brother, the defendant Pagler, a chattel mortgage on the stock, equipment and fixtures, and that Pagler then knew that the plaintiff had been adjudged insane and was under guardianship. The principle prayers are that the court establish the plaintiff's ownership in the stock, equipment, fixtures, and good will; that the wife be ordered to deliver possession to the husband; that she be determined to be a constructive trustee of the lease and be ordered to assign all her rights under it to the husband; that she account to him; and that Pagler be ordered to discharge the mortgage.

The substance of the master's findings material to this decision is as follows. In August, 1943, the husband was the sole owner of the business. He sold soda, ice cream, soft drinks, candy, tobacco, light groceries, and papers. By the summer of 1943 he had begun to drink to excess. On August 27, 1943, he was committed for observation and thereafter was continuously confined to an institution until he was released 'on probation' in July, 1946, and about a year later was 'discharged as improved' from the Boston State Hospital. The records there show 'Diagnosis--determined diagnosis with paranoia and paranoid conditions, alcoholic psychosis, other types.' He was advised by the doctors to keep away from his family and did so by living with his brother and working in his brother's store from May to November, 1947. From that time until May, 1948, he was in and out of a veterans' hospital. On August 8, 1948, he wrote his wife requesting the keys to the store. This was his first demand for the return of the store. The husband 'did not abandon or give to * * * [the wife] the store and business at any time.' His absence from the store was 'involuntary' at least until his final discharge from Boston State Hospital in July, 1947. He was under guardianship from February 17, 1945, until September 15, 1947. After the husband was confined on August 27, 1943, the wife operated the store with the assistance of the children of the parties. When she took over she made no inventory and kept no records and 'is now not able to give any account of the earnings from the store until the year 1947.' Because 'no figures were available' the master made no finding as to the earnings of the business between August 27, 1943, and January 1, 1947. In the year 1947 the net profit was $5,039.83. In 1948 the net profits to November 15, when the hearing before the master began, were $4,267.80. The husband made no contribution toward the support of the wife and family from August 27, 1943, when he was confined 'to the present' except that the Veterans Administration paid to her $1,422.66 as his pension benefits. He paid no bills of the store after he was committed, but since the wife operated the store the sum of $662.43 for back rent owed by the husband has been paid to the owners of the building. The wife obtained from the owners a lease of the store premises in her own name, which, however, expired October 1, 1951.

As to the mortgage to Pagler the master found these facts: On May 9, 1947, the wife acting in her own name gave Pagler a note and mortgage for $1,788.74 on all stock and fixtures of the store. At that time the husband was in the Boston State Hospital as an insane person. Both the wife and Pagler knew this and did not consult the guardian who they knew had been appointed. Neither party to the mortgage acted in good faith. Pagler had paid certain bills for the store, but the money had come out of the store and was not Pagler's money. Pagler did not 'use his own money' in the mortgage transaction.

Upon the coming in of the master's report several courses were open to the judge. See Minot v. Minot, 319 Mass. 253, 257-258, 66 N.E.2d 5. He could have dealt with the objections to the report filed by each of the parties and could have confirmed the report in whole or in part, or the could have recommitted the case to the master for such further findings as he deemed necessary, or he could have ordered all the evidence received by the master to be reported (a course seldom adopted) and then could have rejected any findings of the master which he deemed plainly wrong, or he could have discharged the report altogether and reheard the entire case himself or recommitted the case to another master. He adopted none of these courses. Instead, an amendment was allowed to the bill introducing as defendants for the first time the owners of the real estate where the store was located (because of the lease), and thereafter the judge heard the testimony of one of those owners. No other testimony seems to have been offered by any party at this time. If the judge had heard only evidence pertaining to the lease as a separable issue and had himself heard all the evidence offered on that issue and had considered no other evidence on that issue, this course also would have been permissible. McClintic-Marshall Co. v. Freedman, 274 Mass. 558, 561-562, 175 N.E. 55; S. M. Spencer Mfg. Co. v. Spencer, 319 Mass. 331, 339, 66 N.E.2d 19. But since findings of a master in a suit in equity are not merely evidence as are findings of an auditor before a jury, but when confirmed, are binding upon the judge as far as they go, it is difficult to see how the judge could use evidence that he heard himself on issues that he did not hear completely to control or qualify the findings of the master who presumably heard all the evidence offered on those issues. In other words, if the judge decides to take a separable issue or question of fact away from the master and to hear it himself, he must hear it in its entirety. There can be no sharing of responsibility between the judge and the master for a single indivisible finding of fact. In the present case it is not clear to us just what use the judge made of the oral evidence which he heard. He made findings of fact which were obviously not based wholly upon the evidence he had heard. Many of them were taken from the master's report and need not have been repeated by the judge if the master's report was to be confirmed. Others were legitimate inferences which the judge could draw from findings of the master, while still others, such as that in July, 1943, the good will of the business was 'worthless' and the stock and fixtures 'all but worthless,' were not found by the master and could not in our opinion...