245 Mass. 281 | Mass. | 1923
The bill in equity alleges, in substance, that in the course of certain transactions the plaintiff entrusted to the defendant, Max Colmes (hereinafter called the defendant), certain diamonds and jewelry, valued at approximately $4,020, the title of which was to remain in the plaintiff; that they were to be sold in Rutland, Vermont, and accounted for to the plaintiff with a ten per cent profit; that after the sale the plaintiff at Boston demanded the return of his merchandise, but the defendant reported that he had been robbed of said property. The bill also avers “ that said diamonds and jewelry were entrusted to the respondent Max Colmes in a fiduciary capacity for the sole purpose of caring for them and to be returned to your complainant; ” that said Colmes was not in fact robbed, “ but has fraudulently retained, misappropriated and converted them while in a fiduciary capacity.” It further alleges that subsequently the defendant was adjudicated a bankrupt, that the plaintiff received a proportionate dividend in the bankruptcy proceedings, and that said Colmes is a member of a copartnership with the other defendants. The defendants filed a demurrer. It was sustained on the ground that no cause for equitable relief was shown by the bill.
An examination of the bill does not clearly disclose on what ground for equitable relief the plaintiff relies. The prayer for an order compelling the defendant to return the goods indicates that the plaintiff is seeking an equitable replevin under G. L. c. 214, § 3, cl. 1. But the general frame of the bill is one to reach and apply the defendant’s interest in a partnership, under § 3, cl. 7. The specific statement that the defendant “ is still indebted to him in the sum of $2,912.85 ” must be taken as true, for the purpose of the demurrer. Although the allegations are uncertain and confusing we are not prepared to say that the bill as a whole fails to show any ground for equitable relief. See H. G. Kilbourne Co. v. Standard Stamp Affixer Co. 216 Mass. 118. Mathieu v. Goldberg, 19 Am. Bankr. Rep. 191.
The liabilities for “ willful and malicious injuries,” which are excepted from the operation of a discharge in bankruptcy under said § 17a (2) relate generally to torts and not to breaches of contract. See McChristal v. Clisbee, 190 Mass. 120; Bond v. Milliken, 134 Iowa, 447 ; 3 Ann. Cas. 169 note. However, it was held in McIntyre v. Kavanaugh, 242 U. S. 138, that a broker who sells and appropriates the proceeds of corporate stocks in excess of the debt secured thereby, without the knowledge or consent of their owner is guilty of a wilful and malicious injury to property within the meaning of said cl. 2 of § 17: and that his liability is not released by a discharge in bankruptcy. On the authority of that case it was decided in Baker v. Bryant Fertilizer Co. 271 Fed. Rep. 473, that one who misappropriated the proceeds of collections obtained in selling goods furnished to him under an agreement that the goods and their pro
Ordered accordingly.