314 Mass. 390 | Mass. | 1943
The defendant’s demurrer assigns as reasons therefor, that the plaintiff’s bill does not set forth any ground for relief in equity and that the plaintiff has a complete and adequate remedy at law. An interlocutory decree was entered sustaining the demurrer with leave to amend into an action at law within thirty days, and a final
The bill alleges that the plaintiff and defendant entered into an agreement by the terms of which the plaintiff, sometime after June 8, 1940, was to be an “employer” (sic) of the defendant; that the plaintiff was to devote “full time” to the defendant’s business and, in return for his “services” was to receive from the defendant $40 a week plus twenty-five per cent of the profit from the defendant’s business; that the defendant was to receive $50 per week plus seventy-five per cent of the profit; that the defendant was to account to the plaintiff for such profits quarterly; that the plaintiff devoted his full time to the defendant’s business until about November 21, 1942, when he was discharged; that the plaintiff has frequently and regularly requested that the defendant give him an accounting of the profits, but that no account has been rendered; that the plaintiff is informed and believes and therefore "alleges that the defendant made a profit of $25,000 between the date of the agreement and the date of the plaintiff’s discharge; and that the defendant is about to enter the armed service of the United States, and in preparation therefor “he intends to alienate or encumber all of his property at some time in the near future.” The prayers of the bill are for a preliminary injunction restraining the defendant from alienating or encumbering his property except in the usual course of his business; that both parties be given a speedy hearing “to establish the merits of the case”; and that the sum due the plaintiff be determined and ordered paid.
1. The allegations in the bill relating to the intended alienation or encumbering by the defendant of his property afford no grounds for relief. Remedies at law by way of attachment and execution are adequate. It is not alleged either expressly or inferentially that the defendant’s property cannot be so reached. See G. L. (Ter. Ed.) c. 214, § 3 (7); Maguire v. Reough, 238 Mass. 98, 100.
2. The plaintiff concedes that he was not a partner of the defendant, but contends that the agreement to share profits established a fiduciary relationship. The question that has
3. The important question for determination is whether the allegations of the bill disclose a fiduciary relationship. The plaintiff relies upon Pratt v. Tuttle, 136 Mass. 233, Craine v. Royster, 255 Mass. 118, and Hooper v. Mayo, 298 Mass. 411, 413. The Pratt case was a bill for an accounting of the net profits of the sale of certain patented wares, which were made and sold under patents belonging to, or controlled by, the plaintiffs, in pursuance of agreements between the plaintiffs and two of the defendants. By these agreements, those defendants were to purchase the patents and, to that end, were to make and sell the patented articles and “pay over one half the net profits” to the plaintiffs until the whole agreed price was paid, whereupon the patents were to be transferred. The court, speaking through Holmes, J., said that there was no doubt that the bill could be maintained against those defendants; that they had agreed to turn over net profits “as such”; that they had made themselves trustees, or quasi trustees, of a specified identified fund, and that such a fiduciary relation “founds the equitable jurisdiction invoked, as well as cross demands and complexity of accounts.” (Page 233.) The Craine case was a bill for an accounting for the defendant’s management and use of real estate, which the plaintiff had conveyed to the defendant’s wife with the defendant’s agree
The plaintiff concedes that the word "employer” in the bill should read "employee.” The defendant was the sole owner of the business to which the plaintiff was to devote his full time, in return for which he was to receive $40 a week and twenty-five per cent of the profits from the defendant’s business. The plaintiff concedes that he was not a partner. In Brown v. Corey, 191 Mass. 189, a bill for discovery and an accounting, it was said that the relation
We are of opinion that the allegations of the bill do not disclose a fiduciary relation between the parties. It does not appear that the defendant, as the plaintiff’s employer, was required to set apart the money received from the conduct of his business as a separate and distinct fund. For all that appears, the defendant, in the conduct of his business, had a right to regard the receipts from it as his own. It is true that, in accordance with the terms of the contract, he was obligated to pay the plaintiff not only a weekly salary but also twenty-five per cent of the profit from the business. From week to week, and if profits were made, the defendant became a debtor of the plaintiff. It is elementary that if he failed to meet his obligation under the contract, an action accrued to the plaintiff to recover whatever was due him. No doubt the plaintiff trusted the defendant. Trust is necessarily involved in any contract of this character. Every employee, whether he thinks of it or not, necessarily trusts his employer to meet his obligation to pay for services rendered where they are not paid for in advance, but it is quite another thing for the employee to contend that the relation of employer and employee is one in which the employer is a fiduciary with respect to the payment of agreed compensation. We are of opinion that, despite the fact that the plaintiff was entitled to receive a part of the profits from the defendant’s business and that the defendant agreed to account for such profits, the bill, as a whole, fails to disclose any fiduciary relation existing between the parties. It follows from
Interlocutory decree affirmed.
Final decree affirmed with costs.