Campbell v. Cook

193 Mass. 251 | Mass. | 1906

Braley, J.

Under the agreement between the parties the defendant while authorized to act as their agent also was given an irrevocable power for a term of five years to manage their property consisting of improved real estate, accounting to each of the plaintiffs for one third of the rents, after retaining in his discretion such sums as might be required for the disbursements enumerated in the instrument. The bare relation of principal and agent may be insufficient to maintain a bill in equity by the principal for an accounting unless the account is so complicated that it cannot conveniently be stated or settled at law, but the fiduciary character of the relations created by this agreement constituted the defendant, who has accepted the appointment, a trustee. R. L. c. 159, § 3, cl. 6. Badger v. McNamara, 123 Mass. 117. Pratt v. Tuttle, 136 Mass. 233. Brown v. Corey, 191 Mass. 189. Makepeace v. Rogers, 4 DeG., J. & S. 649. Sawyer v. Cook, 188 Mass. 163, 165. By his acceptance it then became his duty faithfully to administer the property, to keep accounts of all expenditures, and to render an account to the plaintiffs at reasonable times with full information as to all details of his management. The bill charges that in addition to the statement contained in the accounts rendered the plaintiff's requested that the amount of insurance procured and placed on each parcel of the estate, might be further itemized by including the rates paid, and the names of the companies which issued the policies. The presiding judge having found that these corporations were solvent declined to. order the defendant to disclose their identity.' No satisfactory reason, however, appears why this information should not be given. The plaintiffs were entitled to a full discovery, which was not limited to the financial soundness of the insurers, to be determined by the opinion of their agent, although this opinion, upon his testimony alone, was confirmed by the court. It was the money of the plaintiffs that had been paid, and they had a right fully to explore the entire field of their agent’s operations for the purpose of ascertaining whether the disbursements charged had actually been made, and this would include the premiums paid for insurance to companies of which the defendant was the local agent, and in which as far as possible he had placed the insurance.

In a suit in equity a finding of fact upon conflicting evidence, especially where the credibility of witnesses is involved, will not be reversed on appeal even if all the evidence is reported unless clearly wrong. Poland v. Beal, 192 Mass. 559. Harvey-Watts Co. v. Worcester Umbrella Co., ante, 138. This rule of practice, however, has no application in the present case, for the finding of financial soundness did not involve a finding that the defendant was not obliged to account further by stating the names of the companies. Such a conclusion is in the nature of a ruling of law, which for the reasons given cannot be sustained. The decree of the Superior Court must be reversed, and the case is to stand for further hearing.

Ordered accordingly.