Shapira v. Budish

• Decision Date: 13 March 1931
• Citation: 175 N.E. 159,275 Mass. 120
• Parties: SHAPIRA v. BUDISH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

275 Mass. 120

175 N.E. 159

SHAPIRA

v.BUDISH et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 13, 1931.

Appeal from Superior Court, Suffolk County; A. R. Weed, Judge.

Suit by William Barish against Jacob Budish and others, wherein Sara Shapira was thereafter permitted to appear and prosecute action as party plaintiff, and wherein trustee in bankruptcy for original plaintiff filed a petition to intervene, such petition being dismissed in final decree without appeal therefrom. From an order denying motion to recommit master's report and an interlocutory decree overruling exceptions to and confirming report, and a final decree for plaintiff, defendants appeal. Interlocutory order and decree affirmed, and final decree reversed, and bill dismissed.A. M. Hillman, of Worcester, for appellants.

M. M. Horblit and B. Goldman, both of Boston, for appellee.

SANDERSON, J.

In this suit begun in 1921 William Barish, the original plaintiff, sought among other things to recover a percentage of the profits received by the defendants from the construction, rental and sale of three new buildings. On November 8, 1929, Sara Shapira was permitted to appear and prosecute the action as a party plaintiff. The master found that on of about April 8, 1924, the original plaintiff assigned all his right, title and interest in his claim against the defendants to Isidor Wintman, by an assignment which was lost. He also found that on October 7, 1929, Wintman by written assignment transferred all his right, title and interest, in the suit to the present plaintiff. Barish was adjudicated a bankrupt on December 9, 1926. In 1929 his trustee in bankruptcy filed a petition to intervene. In the final decree this petition was dismissed, and the trustee did not appeal therefrom. It is alleged in the bill that on or about March 1, 1919, the defendants in consideration of the agreement of William Barish to supervise the erection of three new buildings, and in consideration of his agreement to draw only $35 a week as expenses during the period of such erection, agreed to advance all sums necessary for the purchase of a designated lot of land and for the erection of three new buildings thereon, and further agreed that upon the completion of these buildings and upon the sale of the property, they would pay him twenty-five per cent of the net profits of the venture, the fund from rental and sale of the buildings to be treated as a partnership fund, of which Barish was entitled to a one-quarter interest after cost of land and of labor and materials had first been deducted therefrom. The bill further alleged that Barish performed his part of the contract; that the new buildings were completed and ready for occupancy on or about September 1, 1919; that after being let they were sold for a sum in excess of the amounts paid for land, labor and material, but that the defendants have refused to account for the profits of the sale; that the account between Barish and the defendants is voluminous and complicated and cannot be as adequately and conveniently taken in an action at law as in a suit in equity. The relief prayed for was an accounting by the defendants for all sums paid out and received by them in the transaction; for an order that the defendants pay Barish twenty-five per cent of the net profits of the venture; for an injunction and for general relief.

The defendants in their answer deny entering into an agreement to pay Barish twenty-five per cent of the profits arising from the sale of the houses, but say that, if a contract was made for the payment to Barish and Louis Budish for the supervision of the construction of the three new buildings, it was an agreement to pay them as partners fifty per cent of the net profits on the buildings to be erected; that Barish abandoned the work before the buildings were completed; that Louis Budish, his copartner, completed the work provided for in the original undertaking by the partnership, and thereafter managed the real estate and supervised the renting and sale thereof; and that the defendants paid him fifty per cent of the net profits arising from the sale of the buildings.

The master found that the defendants entered into an oral agreement with Barish and Louis Budish as partners by the terms of which the defendants were to advance the money necessary for the purchase of the land in Worcester and for the labor and materials used in the construction of the buildings to be erected thereon, to charge at the rate of eight per cent for the moneys advanced by them, to pay Barish and his partner a sum equal to fifty per cent of all profits made on the venture; that the partners agreed to supervise the construction of the buildings and to work as carpenters in their erection, and as partners to divide their share of the profits equally. There was no written agreement of partnership between them and they engaged in only one prior transaction as partners. The master found that Barish and Louis Budish began the construction of the buildings on or about May 15, 1919, devoting substantially all of their time and effort to the supervision of their construction; that Barish did his full share in the supervision and work necessary for the construction of the buildings, and left Worcester late in September, 1919, when the buildings, except in minor details, were fully completed and ready for occupancy; that part of the premises was occupied by tenants at the time and that there was no abandonment by him of his contract; and the master stated that he was unable to find that there was a dissolution of the copartnership at that time. Their salary was paid weekly by one check until July 12, 1919, and thereafter at the request of Barish separate checks were issued to them. The master found that the defendants lived up to the terms of their agreement with the partnership until the final construction of the buildings. The last of the three houses was sold August 31, 1920. A schedule of the advances by the defendants was made a part of the master's report, showing the amount of the profit of the venture, including interest to August 31, 1920. Barish made demand upon the defendants for an accounting and for his share of the profits on February 4, 1920. Before August 31, 1920, counsel had been employed in reference to the present litigation.

The defendants appealed from the denial of their motion to recommit the report and from an interlocutory decree overruling their exceptions to and confirming the report. We have examined the questions raised by these appeals in so far as they have been argued and no error of law is found. The defence that the contract was made with a partnership went to the merits of the case and was properly raised in the answer. Cushing v. Marston, 12 Cush. 431;Schwoerer v....