Shelburne Shirt Co. v. Singer
| Decision Date | 08 January 1948 |
| Citation | 322 Mass. 262,76 N.E.2d 762 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | SHELBURNE SHIRT CO., INC. v. IRVING I. SINGER & others. |
October 27, 1947.
Present: QUA, C.
J., LUMMUS, RONAN & SPALDING, JJ.
Equity Pleading and Practice, Master: findings, report of evidence. Trust Constructive.
Findings by a master, based on evidence fully reported in accordance with a court order, are not to be reversed unless plainly wrong.
In a suit in equity to establish a constructive trust in a one-half interest in certain real estate based on an alleged oral agreement that it should be purchased for the joint benefit of the plaintiff and the defendant, a finding by a master, on evidence fully reported, that there had been no such oral agreement was not plainly wrong and a decree dismissing the bill was affirmed.
BILL IN EQUITY filed in the Superior Court on April 24, 1945, against Irving I. Singer and Flint Mills Property, Inc.
M. Joseph Madowsky was permitted to intervene as a defendant. The suit was heard by Williams, J.
W. A. Torphy, (P.
V. McDonough with him,) for the plaintiff.
R. C. Westgate, (H.
S. R. Buffinton with him,) for the defendants.
F. T. Leahy, (A.
Moskow with him,) for the intervener.
The plaintiff and the defendant Singer, who did business under the name of the Pilgrim Curtain Company, were lessees for several years of different portions of the Flint Mills property, so called, under leases from the city of Fall River, which had become the owner of this property in 1935 and 1936 through tax foreclosure proceedings in the Land Court. The property consisted of two large five-story mill buildings connected by another five-story building known as the picker building. The plaintiff and Singer, hereinafter called the defendant, occupied space in each of these three buildings. The plaintiff's annual rental was five cents a square foot while that of the defendant was six cents a square foot. There were other tenants, and a part of the premises was vacant. The plaintiff's lease expired December 31, 1945, but the plaintiff had an option for five years more; the defendant's lease expired in July, 1946 and he had been informed that the city would not give him another lease. For a number of years the city had incurred an annual loss of $24,000 in maintaining the property and was anxious to dispose of it. One Fromberg, a practising attorney in New York city, submitted on December 21, 1944, in his own name but in behalf of the defendant, an offer to buy the property for $1,000. Upon learning that this offer had been made in behalf of the defendant, the plaintiff on January 3, 1945, submitted an offer to purchase for a similar amount. Both offers came before the city council on January 9, 1945, and, after hearing counsel for both parties, the city council passed an order accepting the defendant's offer. On the next day, the plaintiff submitted a second offer to purchase for $15,000. The mayor on January 17, 1945, vetoed the order passed by the city council on January 9, 1945. On February 5, 1945, one Doherty submitted an offer of $16,000. At a meeting of the city council on February 13, 1945, that body voted to override the mayor's veto, to sell the property to Fromberg for $1,000, to accept $15,000 as a gift from Fromberg to the city, and to grant leave to the plaintiff and Doherty to withdraw their offers. The city conveyed the property to Fromberg on March 12, 1945, and he on March 27, 1945, conveyed it to the defendant Flint Mills Properties, Inc., which had been organized for the purpose of taking title from Fromberg. The stock of this defendant was owned equally by the defendant Singer and one Madowsky, who has been allowed to intervene in the present proceedings.
The plaintiff brought this bill in equity to establish a constructive trust in the property and to compel a conveyance of this one-half interest to it. The judge on May
18, 1945, referred the suit to a master under the usual order of reference, Rule 86 of the Superior Court (1932), and on the same day appointed a commissioner to report the evidence. The plaintiff filed objections to the master's report and a motion to recommit with instructions to the master to strike out certain findings. A motion to amend the order of reference to the master by requiring him to report all the evidence was allowed after the judge found that this provision had been inadvertently omitted from the reference. The case was then recommitted to him for this purpose, and a transcript of the evidence was filed and was made a part of the report. The plaintiff's exceptions to the report were overruled and the report was confirmed; its motion to recommit for the purpose of striking out certain findings was denied; and a final decree was entered dismissing the bill. The plaintiff appealed from these interlocutory decrees and also from the final decree.
The plaintiff's contentions are that the defendant through Fromberg made an oral agreement to purchase the property for the equal and joint benefit of the plaintiff and the defendant; that Fromberg was authorized to make this agreement in behalf of the defendant; that Fromberg became and was the attorney for both parties in the acquisition of the property, which was of peculiar and special value to both parties; that a fiduciary relation existed between them relative to the purchase of the property; that the plaintiff thereby secured an equitable interest in the property when it was purchased by Fromberg; and that the defendant in violation of his fiduciary obligation refuses to recognize the plaintiff's interest in the property.
The plaintiff filed seven exceptions to the master's report. The first five were objections to findings of fact and were based upon the ground that they were not supported by the evidence. The remaining two exceptions referred to rulings on evidence by the master, but we consider them as waived because they have not been briefed or argued. Boston v. Santosuosso, 307 Mass. 302 , 353. Geffen v. Paletz, 312 Mass. 48 , 58. Coe v. Coe, 316 Mass. 423. We do not intimate that there is anything in either of the last two exceptions if the questions were presented. The five exceptions also furnished the basis of a motion to recommit to the master and for an order from the judge instructing the master to strike from the report the five findings of fact. The exceptions and the motion in effect raised the same question, which was that the findings complained of were plainly wrong. The findings of the master which are challenged are in substance that there was no oral agreement that the property was to be purchased for the joint interest of the plaintiff and the defendant; that the parties in their dealings with reference to the property never went beyond preliminary negotiations; that there was no fiduciary relation between Fromberg and the plaintiff; that Fromberg acted solely as the agent of the defendant; that the corporate defendant is the sole owner of the...
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