Porter v. Howes

• Citation: 202 Mass. 54,88 N.E. 445
• Parties: PORTER v. HOWES et al.
• Decision Date: 19 May 1909
• Court: United States State Supreme Judicial Court of Massachusetts

202 Mass. 54

88 N.E. 445

PORTER v. HOWES et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1909

COUNSEL

Henry P. Brown, for appellant.

Lewis W. Howes and Horace G. Allen, for appellee Lewis W. Howes.

OPINION

MORTON J.

The plaintiff contends that the deed from him to the respondent Howes and the agreement signed and delivered by the respondent to the plaintiff, which the court found was a part of the same transaction with the execution and delivery of the deed, together constituted either an equitable mortgage or a conveyance in trust, and he seeks an accounting by the respondent Howes, whom we shall speak of as the respondent and a reconveyance upon payment by him of what, if anything shall be found due from him to the respondent.

The case was heard by a justice of the superior court upon oral evidence which was taken by a commissioner, and is all before us. The justice filed a memorandum of his findings, and in accordance therewith a decree was entered dismissing the bill. The plaintiff appealed.

The general rule is well settled that in a case heard as the one before us was the findings of the judge who heard it will not be disturbed unless upon all the evidence they appear to be plainly wrong. Jennings v. Demmon, 194 Mass. 108, 80 N.E. 471; Reed v. Reed, 114 Mass. 372.

The presiding justice found that at the time when the deed was executed and delivered by the complainant to the respondent the relation of client and counsel existed between them and that a large amount of litigation in which the complainant would be involved was anticipated. Some suits had been brought against him and many others followed and the respondent acted as attorney for the complainant in all of them--about 20 in all. Most of the services rendered by the respondent to the complainant were performed between January 1876, and January, 1880 the cases being finally disposed of largely in 1887, 1878, and 1879, all but two prior to 1883, one in 1883, and the last in 1887. No money was ever paid to the respondent except a small sum in 1877 or 1878 on account of the expenses in one of the cases. The complainant had no money that he could conveniently pay to the respondent being embarrassed by reason of attachments on his property and judgments against him. It was agreed at the time that the deed was executed and delivered that the complainant should for a time collect and retain the rents and he did so till May or June, 1879, and paid the taxes for 1876 and 1877. In May or June, 1879, the respondent asked the complainant for money on account, but the complainant was unable to give him any and the respondent stated that his bill was very much in excess of the value of the property, and it was then orally agreed that the complainant would surrender all claim or right to a reconveyance, and from that time on, the respondent collected the rents, paid the taxes, made repairs and managed the property as absolutely his own. The agreement was not delivered to the respondent for the reason that he did not deem it necessary that it should be given up to him. No bill was ever rendered by the respondent to the complainant, and after 1880 the complainant never asked for one and made no offer of payment, and the respondent has made...