Rolikatis v. Lovett

• Decision Date: 03 February 1913
• Parties: ROLIKATIS v. LOVETT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

213 Mass. 545

100 N.E. 748

ROLIKATIS v. LOVETT.

Supreme Judicial Court of Massachusetts, Essex.

February 3, 1913

COUNSEL

Wm H. Niles, of Lynn, for complainant.

N. D A. Clarke, of Lynn, for defendant.

OPINION

BRALEY J.

The evidence not having been reported, the master's findings of fact are conclusive, and it follows that when the defendant, an attorney at law, acquired the property which is the subject of this suit, the fiduciary relation of attorney and client existed between the parties. It further appears that his attendance at the sale was upon an understanding and arrangement that he should safeguard the plaintiff's interests, and bid off the property for her, and the master unhesitatingly finds that instead he took advantage of the opportunity to obtain the title for himself. A clear breach of the trust and confidence which she had reposed in him is shown by the report. The extent and nature of this relation and the scrupulous care which should be exercised by the court when the validity of transactions where the attorney acquires the property of his client, or property which he has engaged to procure for his client, are under review have been so recently pointed out that further discussion is unnecessary. Hill v. Hall, 191 Mass. 253, 77 N.E. 831; Manheim v. Woods, 100 N.E. 747. It is true that the plaintiff, although prepared to advance the purchase price, did not do so, and consequently there is no resulting trust. Bourke v. Callanan, 160 Mass. 195, 35 N.E. 460. But whenever an attorney at law who is retained or employed to purchase buys the property indirectly on his own account without the client's assent, as in the case at bar, a constructive trust arises, and he will be held to be a trustee at the election of his client, who is entitled to the benefit of the transaction. Hawkes v. Lackey, 207 Mass. 424, 93 N.E. 828, where the cases are collected; Manheim v. Woods, supra.

The defense of laches not having been pleaded is not open. Stewart v. Joyce, 201 Mass. 301, 87 N.E. 613. But if pleaded we should hesitate long before holding that the delay of less than two years, where the plaintiff is shown to have been of foreign birth, and unacquainted with our language and during the time had implicit faith in the defendant's singleness of purpose, and believed, from his conduct and statements, that he had acted in her behalf until he refused to recognize her rights, and claimed the...