Vesce v. Gottfried

• Decision Date: 02 February 1968
• Citation: 233 N.E.2d 759,353 Mass. 568
• Parties: Vivian R. VESCE, Individually and as Administratrix v. Bernard GOTTFRIED et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 759

233 N.E.2d 759

353 Mass. 568

Vivian R. VESCE, Individually and as Administratrix v. Bernard GOTTFRIED et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 2, 1968.

Decided Feb. 2, 1968.

Bernard Kaplan, Boston, for plaintff.

No argument or brief for defendants.

Before WILKINS, C.J., and SPALDING, CUTTER, KIRK and REARDON, JJ.

CUTTER, Justice.

Mrs. Vesce seeks declaratory relief concerning her late husband's interest in a certain boat, motor, and trailer (hereinafter collectively referred to as the boat). The bill also contains a prayer for general relief. ¹

The trial judge found that Vesce had financed the boat 'through a bank loan which provided that in case of Vesce's death, the loan was insured and would become paid up.' On June 15, 1961, Vesce sold the boat to Gottfried and gave him a bill of sale, which stated (in part) that Vesce had sold his 'boat * * * motor and trailer to * * * Gottfried * * * for the balance of my payments (26) at $51.42 per month to be paid to me and I in turn pay the * * * (b)ank. The balance of the unpaid note is $1336.67, and has (sic) two years to pay it off, as of * * * June 15, 1961.' Vesce died in September, 1961.

The trial judge concluded 'that the boat is owned by * * * Gottfried.' A final decree so declared, but contained no declaration concerning whether and to what extent Gottfried was indebted to Vesce's estate for the unpaid balance of the purchase price. The case is before us on the judge's findings. The evidence is not reported.

1. The final decree should have determined the whole controversy between the parties and should have left for future determination no issue reasonably raised by the bill and prayers for relief, including the prayer for general relief. Se Zaltman v. Daris, 331 Mass. 458, 462, 120 N.E.2d 393. See also Trustees of Dartmouth College v. City of Quincy, 331 Mass. 219, 227--228, 118 N.E.2d 89; Nissenberg v. Felleman, 339 Mass. 717, 724, 162 N.E.2d 304; Powers, Inc. v. Wayside, Inc. of Falmouth, 343 Mass. 686, 694, 180 N.E.2d 677; Commissioner of Administration v. Kelley, 350 Mass. 501, 505, 215 N.E.2d 653. Even though the bill did not specifically request that the amount of Gottfried's unpaid debt to Vesce's estate be decided, this issue was raised, at least by implication, by the bill.

2. We interpret the somewhat informal bill of sale from Vesce to Gottfried (which on this record appears to be the whole contract of sale) as providing for a sale of the boat for the aggregate amount of the payments then remaining to be made on the bank loan, to be paid in instalments by Gottfried at the times required to enable Vesce to pay off the bank loan instalments as they would become due. We do not view the transaction of June 15, 1961, as involving any assumption of the bank...