Smith v. Knapp

• Decision Date: 30 June 1937
• Citation: 297 Mass. 466,9 N.E.2d 399
• Parties: SMITH v. KNAPP.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

297 Mass. 466

9 N.E.2d 399

SMITH

v.KNAPP.

Supreme Judicial Court of Massachusetts, Bristol.

June 30, 1937.

Suit in equity by Mary J. Smith against Lina L. Knapp. From a final decree dismissing the bill, plaintiff appeals.

Affirmed.Appeal from Superior Court, Bristol County; Brown, Judge.

P. Barnet, of New Bedford, for plaintiff.

G. P. Ponte, of New Bedford, for defendant.

RUGG, Chief Justice.

This suit in equity is brought by the plaintiff to establish a trust for her benefit in certain real estate of the defendant. It is alleged in the bill that, pursuant to a conspiracy between the defendant and one Helen C. Tripp, the latter by false representations known to the defendant, induced the plaintiff to turn over to her $2,000 to be invested for the benefit of the plaintiff in securities; that the defendant procured Miss Tripp to apply $1,500 of the money so obtained in payment of an amount due on a mortgage on real estate of the defendant; that part of the money so obtained has been returned to the plaintiff, leaving $750 unpaid. The prayer of the bill was that the real estate of the defendant be impressed with a trust for this amount for the benefit of the plaintiff. The answer of the defendant put in issue the essential allegations of the bill. The case was referred to a master, who filed a report and a supplemental report. The evidence is not reported. An interlocutory decree was entered overruling the objections of the plaintiff and confirming the report and the supplementary report. A final decree was entered dismissing the bill. The plaintiff appealed from the final decree. As no appeal was taken from the interlocutory decree, the objections cannot be considered unless the final decree is erroneously affected thereby. G.L.(Ter.Ed.) c. 214, § 27. Reno v. Cotter, 236 Mass. 556, 560, 129 N.E. 300;Nochemson v. Aronson, 279 Mass. 278, 280, 181 N.E. 188.

The master found these facts: The defendant and Miss Tripp had kept house together on the premises of the defendant since 1927. They lived together as friends without any fixed price for Miss Tripp's board and room, but under an arrangement whereby each contributed to their common living expenses from time to time as their respective circumstances would permit. No record was kept of the amount expended by either of them and no accounting was ever had or attempted. In 1927, the defendant borrowed $1,500 from the New Bedford Cooperative Bank (hereafter called the bank) and gave as security a mortgage on her real estate, located in Dartmouth in this Commonwealth, which provided for monthly payments of $15.50 to the bank. Miss Tripp at times paid monthly installments to the bank as a contribution to the living expense account. Upon the receipt of any notices of arrears from the bank, the defendant gave them to Miss Tripp. Miss Tripp then interviewed the treasurer, whom she representedto the defendant she knew well. During the period from 1927 to 1932, Miss Tripp had not contributed a great deal to the common expenses but had told the defendant that her mother had created a $4,000 trust fund which would pass to Miss Tripp on her mother's death, and that when she received this money she would pay the defendant what was proper. After the mother's death in March, 1931, Miss Tripp represented to the defendant that she had conferred with the treasurer of the bank about the arrears due on the mortgage and had received his assurance that the matter of paying could await the settlement of the estate of Miss Tripp's mother. The defendant was not acquainted with the plaintiff and had no knowledge of her property, and there was never any talk between the defendant and Miss Tripp about obtaining any money from the plaintiff. On July 12, 1932, Miss Tripp, by false and fraudulent representations, induced the plaintiff to turn over to her the sum of $2,000 on the understanding that it was to be invested by Miss Tripp in a syndicate in Providence, Rhode Island. On the same date Miss Tripp applied $1,400 of that money in payment of the balance due on the note of the defendant to the bank, and the bank on the same date discharged its mortgage. The defendant first learned of the payment of the mortgage by Miss Tripp when the latter telephoned her that she was at the bank and paying it off. The defendant first learned in October or November, 1932, that the money was obtained from the plaintiff by Miss Tripp when she was arrested on a charge of larceny on the plaintiff's complaint. Members of Miss Tripp's family have made restitution to the plaintiff in her behalf to the extent of $1,250. The defendant is not now the owner of the property which had been covered by the mortgage. The master was unable to find on the evidence that the defendant connived or conspired with Miss Tripp to obtain any money from the plaintiff, or that the defendant had any knowledge of how or where the money was obtained when it was applied to the discharge of the mortgage. The master found that, while ‘there was no real debtor-creditor relationship between Miss Tripp and the defendant at the time of the payment of the mortgage,’ the situation concerning their friendly arrangement as to joint living expenses was such that the defendant could reasonably and did expect that Miss Tripp, when her circumstances would permit, would make a substantial payment to her or for her benefit, and that, in view of Miss Tripp's earlier representations as to her interest in her mother's estate and as to the arrangements previously made with the treasurer of the bank, the defendant did not suspect and had no reasonable ground to suspect, that the money used to pay the mortgage debt had been wrongfully obtained. There was no general or continuing relationship of principal and agent between the defendant and Miss Tripp. On several occasions Miss Tripp had consulted the treasurer of the bank in relation to the default, in order to forestall foreclosure by the bank of the mortgage on the defendant's property. In doing this Miss Tripp acted for the defendant's benefit and at her request. But the acts of Miss Tripp in obtaining money from the plaintiff and in applying a portion thereof in payment of the mortgage were done by Miss Tripp on her own initiative and without any express or implied authority from the defendant. Miss Tripp did not act as agent for the defendant at the time she paid off the mortgage on the defendant's property with money fraudulently obtained from the plaintiff.

Where the evidence upon which the findings of a master are based is not reported, the findings of fact are final and must be accepted as true unless they are mutually inconsistent or plainly wrong. Prudential Trust Co. v. McCarter, 271 Mass. 132, 139, 171 N.E. 42;...