281 Mass. 528 | Mass. | 1933
This is a bill to reach and apply certain interests of the defendant Fitch, not attachable at law, to payment of an amount claimed to be due to the plaintiff. It is not a bill in equity for rescission of a contract. The case was referred to a master who found, inter alla, the following facts: The defendant owned and conducted a wholesale fish business under the name Warren Fitch Company. The plaintiff entered his employ in August, 1925. In January, 1926, the defendant proposed that the plaintiff continue in his employ at $100 a week, this salary to be reduced if business conditions did not warrant it, and, in addition, yearly, one fifth of the net profits of thé business, to be used solely to purchase a one-fourth interest in the defendant’s business and to be retained by the defendant until $10,000 should be accumulated whereupon the plaintiff should be entitled to a one-fourth interest in the business in either a corporate or partnership form. No time limit for the accumulation of the $10,000 was fixed. Pursuant to this agreement the plaintiff received the weekly salary, and in January of 1927 and of 1928 received checks for $2,248.48 and $1,314.38 as one fifth of the profits of the .respective years. By consent of the defendant he retained $248.48 and $314.38 and returned $2,000 and $1,000 to be held for the accumulation. No profit was figured for the year 1928 owing to illness of the defendant, but the amount coming to the plaintiff as shown by the books would have been $549.51. A similar showing from the books for 1929 showed one fifth of the profits to be $360.18. From January, 1926, to August, 1928, the plaintiff was paid $100 per
The master reported that a balance of $3,490.12 was due the plaintiff. This was reached by adding one fifth of the profits for 1926, 1927, and 1928 and two thirds of one fifth of the profits of 1929, and subtracting from the total, overdrafts in 1927, 1928, and 1929. The plaintiff waived all claim to any profits after September 3, 1929. No demand on the defendant was made before filing the bill on September 8, 1931. The master found as follows: “I find that by remaining in the employ of the defendant after September, 1929, the plaintiff thereby assented to waive one fifth of the profits after that date, and I therefore find that the- plaintiff is entitled only to two thirds of one fifth of the net profits for the year 1929, which amounts to $240.12.”
The defendant Fitch filed exceptions to the report but waived them at a hearing on confirmation. The plaintiff moved to strike out paragraphs dealing with the amount for which the defendant sold. This motion was allowed; and, as thus amended, the report was ordered to be confirmed. Later the defendant Fitch moved a recommittal. The report was recommitted for stated purposes. A supplemental report was filed which stated that counsel for the plaintiff “expressly waived damages for breach of the
In substance, the defendant Fitch contends that the alleged contract was unenforceable and that the plaintiff has no standing on the doctrine of rescission. The first ground rests on the statute of frauds, on the basis that the
Next, although the word “rescission” as used in the master’s and judge’s reports tends to confuse the thought, both master and judge rightly are thinking of an action at law for money had and received brought into equity by our process for reaching and applying interests which cannot be attached at law, where the defendant is holding property after a partial failure of consideration due to his own act. They are not dealing with the right of rescission of a plaintiff in equity. Here the facts show an employment to be recompensed partly in weekly payments of wages and partly by a share in yearly profits; a full performance by the employee; a deposit of the profits with the employer to be applied to a purchase of a share in the business; an act of the employer rendering such application impossible, and a refusal to pay over the amount deposited. The defendant holds money earned by and belonging to the plaintiff and refuses to return it because, through an act of his own, the purpose for which he was holding it has become impossible. The judge was right in holding that the plaintiff’s right to recover “was not terminated by the parties on September 3, 1929, and a new agreement of employment . . . substituted.” Even if a new agreement of employment on new terms was thus made, it did not defeat the plaintiff’s claim for his own money then in the defendant’s hands under the old contract, unless both parties so agreed. The master and judge were justified in failing to find this latter agreement. Merely keeping still and going on earning a living under the same man or under the purchaser from him do not require such a finding.
There was no occasion for the plaintiff to put the de
The principles are elementary. Final decree for the plaintiff in accord with the judge’s order should enter with costs.
Ordered accordingly.