Volpe v. Sensatini

• Decision Date: 23 May 1924
• Citation: 249 Mass. 132,144 N.E. 104
• Parties: VOLPE v. SENSATINI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

249 Mass. 132

144 N.E. 104

VOLPE

v.SENSATINI.

Supreme Judicial Court of Massachusetts, Norfolk.

May 23, 1924.

Appeal from Superior Court, Norfolk County; Wait, Judge.

Suit in equity by Luigi Volpe against Umberto Sensatini to establish partnership and for an accounting. Decree for defendant, and plaintiff appeals. Affirmed.

Jos. P. Walsh, Edw. M. Dangel, and John J. Enright, all of Boston, for appellant.

John E. Crowley, of Boston, for appellee.

RUGG, C. J.

This is a suit in equity wherein the plaintiff seeks to establish a partnership between himself and the defendant and for an accounting. The case was referred to a master ‘to hear the parties and their evidence and to report thereon.’ There was no order to report the evidence and of course no evidence is reported. The master found as a fact that no partnership existed and that a specified amount was due from the defendant to the plaintiff.

[1][2] The plaintiff filed numerous objections to the master's report. All these objections relate to findings of fact. They rest chiefly on the ground that the findings are contrary to the weight of the evidence or are unsupported by the evidence. The evidence on which these findings were founded not being before us, the exceptions must be overruled. The findings made are consistent with each other and not mutually contradictory. They must stand. Cook v. Scheffreen, 215 Mass. 444, 447, 102 N. E. 715;Fuller v. Fuller, 234 Mass. 187, 125 N. E. 499;Glover v. Waltham Laundry Co., 235 Mass. 330, 334, 127 N. E. 420.

[3] The answer filed by the defendant was in substance a mere general denial. It was wholly improper as an answer in equity. A defendant in equity is bound to answer fully, categorically and unequivocally, with positiveness and directness, all matters charged in the bill. The essentials of a proper answer in equity have been recently described with accuracy and amplification in an opinion written by Mr. Justice Jenney in Burke v. McLaughlin, 246 Mass. 533, 141 N. E. 601. They need not be here repeated. The answer in the case at bar failed in every particular to conform to these requisites.

The plaintiff could not take advantage of defects in the answer after proceeding to trial on the merits before the master. By failing earlier to object to the sufficiency of the answer, errors in its form and substance must be taken to have been waived. The requests for findings of fact made to the master based on the ‘pleadings and evidence’ come too late to warrant the plaintiff in raising in that form objections to the sufficiency of the answer. Burke v. McLaughlin, 246 Mass. 533, 141 N. E. 601;Bauer v. International Waste Co., 201 Mass. 197, 201, 87 N. E. 637;Maker v. Bouthier, 242 Mass. 20, 24, 136 N. E. 255.

[6] The objection urged, that the finding of the master included on interest on the amounts advanced or property handed over by the plaintiff to the defendant, cannot now be sustained. It was not made a ground of objection or exception to the report. There do not appear in the report sufficient facts to show that any error was committed.

[7][8][9] The argument by the plaintiff, that the allowance of a motion and the...