283 Mass. 492 | Mass. | 1933
The plaintiff alleges in his bill that he and the defendants were partners in a building enterprise, and asks for an accounting and for the cancellation of mortgages held by Max J. Zieman, one of the partners. The defendant Max Zieman admitted being in partnership with the plaintiff, but the defendant Max J. Zieman denied it, and contended that he was simply a mortgagee of premises owned by the partnership. The finding of the master that Max J. Zieman is only a mortgagee and not a partner disposes of the ground of the original bill as against Max J. Zieman, and the plaintiff does not argue that the bill ought to be retained for the purpose of obtaining an accounting .against Max Zieman.
By an amendment to the bill, allowed during the hearings before the master, the plaintiff alleged that the defendant .Max J. Zieman was acting in a dual capacity as attorney for the plaintiff and as mortgagee, and in that dual capacity overreached the plaintiff by making unconscionable charges and also by purchasing a parcel of land for himself as to which he was acting for the plaintiff as attorney, and prayed for an accounting against Max J. Zieman alone, and for the cancellation of a mortgage for $20,500 held by him.
The master found that “The defendant Max J. Zieman is an attorney at law . . . and was at all times counsel for the plaintiff and counsel for himself in the matters referred to in the instant bill.” The master found that about the middle of September, 1928, the partnership offered one Newman $30,000 for a large parcel of land on Seaver and Brookledge streets in the Roxbfiry district, and
After complicated transactions, the upshot of the matter is that Max J. Zieman holds only a blanket mortgage written for $20,500 given by the partnership to him, covering three parcels. As to one parcel it is a third mortgage, and as to the others a second mortgage. Although there is no offer to redeem and no prayer for redemption, the master has made a careful accounting, and has determined the amount due as of March 31, 1932. He left to the decision of the court the question whether an allowance of five per cent of the rents collected could properly be made to the mortgagee for the care of the mortgaged property after the entry to foreclose. Plainly that allowance is proper and customary. Barry v. Dow, 240 Mass. 419. Barry v. Harlow, 242 Mass. 159, 162. The amount due to the defendant Max J. Zieman under the blanket mortgage,
After the confirmation of the master’s report, a decree dismissing the bill was entered. The plaintiff appealed. It is true that no specific prayer for relief could have been granted upon the facts found. Simply to dismiss the bill, however, would waste all the effort that has been put into the accounting, and we think that the final decree should be modified by inserting in the ordering part of the decree a declaration stating and adjudicating the account as of March 31, 1932. Goodman v. Goldman, 265 Mass. 85. Knowlton v. Swampscott, 280 Mass. 69, 72, 73. Winick v. Padovani, ante, 126. We do not think it necessary in this case to bring the account down to the date of the new final decree, as would be proper if specific relief were to be founded upon the accounting. Isam Mitchell & Co. Inc. v. Norwach, 260 Mass. 33, 37. Rudnick v. Rudnick, 281 Mass. 205, 208. With that modification, the final decree is affirmed with costs.
Ordered accordingly.