247 Mass. 282 | Mass. | 1924
This is a bill for an accounting. The case was partially heard by a judge of the Superior Court and, before the hearing was completed, referred by him to a master, who has filed a report. The evidence taken before the judge and found on pages 8 to 38, both inclusive, of the record is not properly a part of the record and should not have been embodied therein. As the evidence before the master is not reported, his findings are conclusive. An interlocutory decree has been entered confirming the report and overruling the plaintiff’s exceptions; and a final decree has been entered dismissing the bill. No exhibits are referred to in the report or made a part of the record.
The bill alleges that the parties entered into a joint enter
The master found that in September, 1917, the plaintiff was a real estate broker; that during that month he first met the defendant; that she told him she desired to find some investments; that he had several talks with her respecting the property above referred to and finally told her it could be purchased for $30,000, although he had previously stated to her that a much larger price was asked; that it was agreed they would buy the property on equal shares and share equally in the profits at the price of $30,000, it being stated by the plaintiff that the bank would take first mortgage of $24,000, a second mortgage could be secured of $4,000, and that the balance of the purchase price, together with certain adjustments, was to be paid in cash equally by the parties.
The master further found that the defendant paid in cash at the direction of the plaintiff, on account of the purchase price, expenses and adjustments, the sum of $2,358.25 and that the plaintiff paid nothing on account of such price, expenses or mortgages; that the plaintiff told the defendant that he would not claim a commission but would pay one half of the amount required above the mortgages.
It also appears that shortly before the plaintiff entered the military service, he conveyed his interest in the property to Jane C. Youatt, his wife’s sister, to hold the same for the benefit óf his wife and also to protect it from certain creditors; that at the same time Miss Youatt executed a deed of the property to him which was not recorded until just before his discharge on December 17, 1918.
The master found that the plaintiff failed to pay or offered to pay anything upon his share of the purchase price and deficit, although he had full knowledge of the same and that the defendant was in possession of the property and was endeavoring to sell it; and that the sale was made January 15, 1919, and title was taken by the defendant; thereafter, on or about July 12, 1920, she sold the property to one Rowe for $32,500.
The master has stated in detail the account between the parties and found that the total amount for which the defendant is accountable if the bill can be maintained is $2,908.33; and that if the plaintiff is not precluded as matter of law from recovery he is entitled to receive one half of that sum.
The contention of the plaintiff that the foreclosure sale under the second mortgage, made within three months after the period of his military service expired, is invalid, cannot be sustained. The provisions of the soldiers’ and sailors’ civil relief act, U. S. St. 1918, c. 20, § 302, cl. 3, did not prevent nor make invalid such a sale when, as the master found, the plaintiff knew of it and made no objection thereto. It is a necessary inference from the finding that he expressly assented to it.
On the appeal from the final decree, it is open to the plaintiff to argue from the facts found by the master that the defendant is not entitled to prevail. French v. Peters, 177 Mass. 568. Lyons v. Elston, 211 Mass. 478. Fay v. Corbett, 233 Mass. 403, 410.
It is plain from the findings of the master that the plaintiff induced the defendant to enter into the agreement for the purchase of the property by reason of his misrepresentations and .fraud, not only with reference to the purchase price, but in connection with other matters relating to the transaction; that he paid nothing toward the purchase price of the property, nor did he pay any part of the money advanced by the defendant to carry it; and it is a rational inference from the findings that he never intended to make any of said payments in accordance with his agreement.
The finding that the defendant relied on the plaintiff’s statements and believed that he was acting in good faith in his representations to her, together with the findings of fraud and deception practised by the plaintiff, preclude him from maintaining the bill. He stood in a relation of trust and confidence to the defendant. She apparently trusted him implicitly and believed that he would faithfully carry out the enterprise in which they had mutually agreed to engage, and would not violate the fiduciary obligations which he owed to her for his own profit and advantage to her detriment. A party who seeks relief in equity must be free from unconscionable conduct on his own part. The salutary rule of law that one who seeks the aid of a court of equity must come with clean hands is applicable to the case at bar. The false representations and deception practised upon the defendant, being necessarily related to the matter for which the plaintiff seeks relief, are a bar to the maintenance of the bill. Lawton v. Estes, 167 Mass. 181. Sawyer v. Cook, 188 Mass. 163, 169. Downey v. Charles S. Gove Co. 201
Decree affirmed.