Herbst v. Fidelia Musical & Educational Corp.

218 Mass. 174 | Mass. | 1914

Sheldon, J.

This bill, though wrongly entitled, is treated as if brought by the individuals' named in it as plaintiffs, suing in behalf of themselves and all the other members of the voluntary, association. It could not have been maintained by the voluntary association itself. Pickett v. Walsh, 192 Mass. 572, 589. L. D. Willcutt & Sons Co. v. Driscoll, 200 Mass. 110, 111.

At the hearing before the master, only two questions were in dispute, and it was agreed that in- other respects all the averments of the bill were admitted. Those questions were whether the defendant corporation had employed professional singers in the prize singing contest and whether some of those who competed for it in that contest were not bona fide members thereof. The constitution and by-laws of the plaintiffs’ association provided that no professional singers should be employed; and it was agreed that if the defendant corporation had violated those bylaws, it was not entitled to hold the cup for the possession of which the bill was brought.

These two issues were found against the defendants. Unless some of the exceptions to the master’s report should have been sustained, or the report should have been recommitted to the master, it is plain that the decree against them was correct.

The judge was not bound to grant the motion to recommit. No reason appears why there should be any hearing as to matters which once had been agreed; and it is not, and apparently was not, shown that as to matters which were contested there was any real occasion for a further hearing. The motion rightly was denied.

We see no ground for sustaining any of the exceptions to the report. Those which relate to findings of fact must be overruled, because we have not before us all the evidence. Many of the others are immaterial, and ought not to have been argued. We find no error in any of the rulings of the master that have been excepted to upon the admission or exclusion of evidence. As to several of these, it does not appear what evidence was ruled upon, and for that reason no error is shown. The master was not ordered to report the evidence and properly declined to do so. His refusal to reopen the hearings for the admission of further evidence before settling his final report does not appear to have been erroneous.

The order in the final decree that “the defendant” return and redeliver the prize cup to the plaintiffs was intended without doubt to include all the parties defendant. It should be modified to make that certain. With that modification, the decree is to be affirmed with the costs of this appeal.

So ordered.