| Mass. | Jan 5, 1911
The first contention made by the defendant Lackey, hereinafter called the defendant, is that these bills ought to be dismissed by reáson of loches on the part of the plaintiff. That defense was not set up in the pleadings, and is not now open to the defendant as of right. Stewart v. Joyce, 201 Mass. 301" court="Mass." date_filed="1909-02-27" href="https://app.midpage.ai/document/stewart-v-joyce-6430589?utm_source=webapp" opinion_id="6430589">201 Mass. 301. Nor, considering the character of the actions, and the facts found by the master, ought such a defense to be sustained. As to most of the transactions complained of, the delay in bringing suit has been largely due to the misplaced confidence reposed-in the defendant by the plaintiff and her aunt and sister, in whose right the second suit is brought. The defendant has not changed his position or lost anything from the fact that the suits were not brought earlier. Stewart v. Finkelstone, 206 Mass. 28" court="Mass." date_filed="1910-05-18" href="https://app.midpage.ai/document/stewart-v-finkelstone-6431067?utm_source=webapp" opinion_id="6431067">206 Mass. 28, 36. As to some of the complaints made against him, he rests his defense on the ground that the bills were prematurely brought.
The judge of the Superior Court sustained the defendant’s exceptions numbered thirteen to twenty inclusive, so far as they related to • the master’s assumption of law that there was no merger of the defendant’s obligation of $2,050 to Elizabeth S, Hawkes by the two ten year notes, each for half that sum which
He has found that at the time of the transactions in question the plaintiff and her sister were each more than fifty years of age, with no property except what had come to them from their aunt, Elizabeth S. Hawkes. They were intelligent and well educated and knew the character and meaning of interest on money and of the time at which a note was payable. But they had scarcely any business experience, and at the beginning of the time in question were almost like children in money matters; and these facts were known to the defendant. They trusted him implicitly, and apparently always did what he asked or advised, although the legal matters connected with their aunt’s estate were, as the defendant knew, in the hands of an attorney, who had not been consulted about these notes and was not present when they were given. The defendant was a relative of these ladies, was intimate with them, and they had confidence in him. He was about thirty years of age and a college graduate. He had had little business experience except through his speculations in stocks, which seem to have been extensive and long continued, and apparently were finally disastrous. For about two years he had acted for these sisters, and for their
The law in relation to such transactions is well settled. It was succinctly stated by Lord Chelmsford in Tate v. Williamson, L. R. 2 Ch. 55,61: “ Wherever two persons stand in such a relatian that, while it continues, confidence is necessarily reposed by one, and the influence which naturally grows out of that confidence is possessed by the other, and this confidence is abused, or the influence is exerted to obtain an advantage at the expense of the confiding party, the person so availing himself of his position will not be permitted to retain the advantage, although the transaction could not have been impeached if no such confidential relatian had existed.” The principle has been affirmed by this court
We are clearly of opinion that the conclusion of the judge as to this matter was well warranted by the master’s report.
The fact that the plaintiff and her sister had received some payments of interest upon these notes was not under the circumstances conclusive evidence of an election on their part to confirm the taking of the notes. Pressed to its strongest, this could not amount to more than an admission by them. Like all bare admissions, it was merely evidence to be considered, as it has been considered, by the master.
The fact that Elizabeth S. Hawkes passed the title to the check for SI,600 to the defendant through his father, and that the attempt was made to indorse it first to the father, then to be indorsed by the father to the defendant, does not make it necessary to find that this was a loan by her to the father and not to the defendant. This too was a piece of evidence, upon which the master was to pass. He has done
Upon examination of the master’s report, the defendant’s exceptions thereto, and the interlocutory and final decrees entered thereon, we find no error in the allowances of interest that finally were made, and only one matter that calls for any discussion. The master reported the sums found due from the defendant in each transaction, and reckoned interest thereon in various ways to meet the different rules of law that might be found to be applicable. The judge sustained the defendant’s contention that he should be charged only with simple interest, and as to some matters with interest to be computed at the rate of only four per cent up to the dates of filing the respective bills. But the defendant contends that in the final decrees interest was charged upon the aggregate sums found by the master from the date of the filing of the master’s report, and that the result of this was to charge him with interest at least once compounded, because the amounts reported were made up in part of interest reckoned up to the date of the report. It might be doubted whether upon this record such a position is open to the defendant. Young v. Winkley, 191 Mass. 570" court="Mass." date_filed="1906-05-17" href="https://app.midpage.ai/document/young-v-winkley-6429415?utm_source=webapp" opinion_id="6429415">191 Mass. 570. We assume however that he may contend that the final decree was erroneous in any particular disclosed by the record. Nelson v. Winchell & Co. 203 Mass. 75" court="Mass." date_filed="1909-06-24" href="https://app.midpage.ai/document/nelson-v-j-h-winchell--co-6430769?utm_source=webapp" opinion_id="6430769">203 Mass. 75, 93.
It was early decided that where the plaintiff in an action upon a contract was delayed in obtaining judgment by an unsuccessful effort of the defendant to obtain a new trial, his judgment . should include interest upon the amount of the verdict from the time that it was rendered. Vail v. Nickerson, 6 Mass. 262" court="Mass." date_filed="1810-03-15" href="https://app.midpage.ai/document/vail-v-nickerson-6403510?utm_source=webapp" opinion_id="6403510">6 Mass. 262. This rule has since been extended by statute and applied to all awards of county commissioners, committees or referees, and reports of auditors or masters in chancery, as well as to all verdicts of juries. R. L. c. 177, § 8. That is decisive of the present contentions. It was the plaintiff’s right to have interest computed as the defendant contends was done. See East Tennessee Land Co. v. Leeson, 185 Mass. 4; Jackson v. Brockton, 182 Mass. 26" court="Mass." date_filed="1902-06-18" href="https://app.midpage.ai/document/jackson-v-city-of-brockton-6427933?utm_source=webapp" opinion_id="6427933">182 Mass. 26.
All the points that were argued before us are covered by what has been said. In each case the decrees appealed from, unless
So ordered.