Winchester Rock & Brick Co. v. Murdough

• Decision Date: 21 May 1919
• Citation: 233 Mass. 50,123 N.E. 344
• Parties: WINCHESTER ROCK & BRICK CO. v. MURDOUGH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

233 Mass. 50

123 N.E. 344

WINCHESTER ROCK & BRICK CO.

v.MURDOUGH.

Supreme Judicial Court of Massachusetts, Suffolk.

May 21, 1919.

Exceptions from Superior Court, Suffolk County; William Cushing Wait, Judge.

Suit in equity by the Winchester Rock & Brick Company against Albert G. Murdough. From decree dismissing the bill, plaintiff appealed, and, the justice of the superior court having refused to grant defendant's motion for dismissal of the appeal, defendant excepts. Decree affirmed; defendant's exceptions being waived.

Arthur Berenson, of Boston, for plaintiff.

Curtin, Poole & Allen and Asa S. Allen, all of Boston, for defendant.

RUGG, C. J.

This is a suit in equity whereby the plaintiff seeks to set aside the sale of certain bonds formerly held by the defendant as collateral security for a note of the plaintiff and to redeem the bonds. The defendant owned a note of the plaintiff for $1,500, which fell due on or about June 25, 1915. He held as collateral security for the note bonds of the plaintiff of the face value of $1,500, which were secured by a mortgage indenture upon real estate. According to the terms of the note, the defendant was authorized to sell the bonds ‘either at public or private sale, or otherwise,’ at his option on the nonpayment of the note, and to purchase at any such sale.

On or about April 10, 1915, more than two months before the maturity of the defendants' note, the plaintiff having failed to pay coupons upon its bonds, the trustees under the indenture took possession of the real estate and other property of the plaintiff and conducted its business until January 5, 1918, and on October 6, 1915, the defendant brought suit on his note, and the defendant therein, the plaintiff here, although entering an appearance made no contest as to its liability and the defendant recovered judgment accordingly. The bonds held as collateral were sold by the defendant at public auction on July 31, 1916, and bought by him for $15. The plaintiff contends that this sale ought to be set aside because it alleges that it was a mere device and pretense and not conducted in good faith and hence not valid.

The case was heard by a judge of the superior court, who found that the sale was made in good faith without intent to take advantage, after careful and ample notice to the plaintiff of the time and place of sale, with due solemnity by a licensed auctioneer, and in the exercise of reasonable care. A decree was entered dismissing the bill.

The familiar rule is that upon an appeal in equity it is the duty of this court to examine the evidence and decide the case according to their judgment, giving due weight to the findings made, but that, since the trial court has had the advantage of seeing the witnesses and weighing their testimony in the light of their appearance, his finding will not be reversed unless plainly wrong. Lindsey v. Bird, 193 Mass. 200, 79 N. E. 263. A mortgagee, lienor or holder of collateral in making sale of security under a power is bound to exercise good faith and reasonable diligence in an effort to secure a fair price for the property and thus not only to assure his own rights but...