The questions presented by the cross appeals are, what amount, if any, is the plaintiff entitled to recover from the defendant' Dillaway, and if relief should be given, whether the final decree is supported by the averments of the bill.
The plaintiff, the defendant and one Temple, who died before suit was commenced, organized a corporation to enter into competition with the defendant, the American Pneumatic Service Company, formerly in their control, but from which they had been displaced by changes in the corporate management. After nearly two years of competition with extensive litigation between the companies concerning alleged infringment of patents either ,owned or controlled by the defendant corporation, the new company ceased to do business under the agreements in writing appearing in the record. It is fairly to be inferred from the oral testimony of the defence, that by reason of the business ability and large experience of the personal defendant the procurement of his services or co-operation in the future, operated as an inducement for the contracts. But irrespective of the controlling purpose whatever it may have been, this defendant received the stock and bonds which formed the consideration under the second agreement, and by an oral arrangement among themselves the stock and bonds were divided in the proportion of three fifths to himself, and one fifth each to the plaintiff and Temple. By the terms of the first agreement executed on February 23, 1909, to which neither the plaintiff nor Temple were parties, the defendant was to receive as advisory counsel in various capacities a yearly salary from the purchasing company payable quarterly during the ensuing five
The dealings between the parties do not seem to have been inconsistent with the plaintiff’s claim, that his right to share in the money received as salary as well as in the stock and bonds had been recognized and conceded. Despite the defendant’s positive denial of the plaintiff’s statements, and his explanation of the checks as being merely gratuities, the finding of the single justice shown by his memorandum of decision, that the oral agreement relied on by the plaintiff had been proved, should not be set aside. Revere Water Co. v. Winthrop, 192 Mass. 455, 459.
Ordinarily it would have followed, that the defendant should account «for the amount withheld. If the quarterly share had been computed on the amount actually received by the defendant the payments to the plaintiff for the six succeeding quarters should have been $1,250 for each quarter instead of $1,215, and the plaintiff’s appeal is grounded on the refusal of the justice to order the defendant to pay the arrearage. The explanation of the defendant proffered to the plaintiff, that he had paid the difference to one Maston to whom he was under obligations for assistance in the accomplishment of some of his commercial projects, is unsatisfactory when viewed with his admission at the trial, that the money withheld had not been paid to any one, and there is much force in
It is elementary as the defendant contends, that the decree should follow the pleadings, and the stating part of the bill cannot be enlarged under a prayer for general relief. Bushnell v. Avery, 121 Mass. 148. The plaintiff, however, asked for an accounting not only of the whole consideration whenever it accrued and became payable, but of the instalments the defendant had received. And although upon the evidence the relief specifically sought was too broad, yet the relief granted having been coextensive- with the allegations of the bill the decree should be affirmed. Franklin v. Greene, 2 Allen, 519.
If as the plaintiff suggests further instalments have accrued since filing the bill, he must resort to a supplemental bill, or to an amendment in the nature of a supplemental bill to recover the arrears. McMurtrie v. Guiler, 183 Mass. 451, 454, 455.
Decree affirmed with costs.