159 Mass. 172 | Mass. | 1893
This case was originally an action at law, and afterwards was amended into a bill in equity to establish the plaintiff’s rights in and to recover a fund of $750, or that part of it to which he might be entitled. The fund is the proceeds of an action of trover for certain wool, brought by a warehouseman, Pratt v. Boston Heel & Leather Co. 134 Mass. 300, and is in the hands of the defendant Washburn as attorney. The plaintiff claims under a blanket pledge or mortgage of the wool, made to secure all indebtedness of Moore, the general owner. The case has been before this court on a former occasion, and it is settled by the decision then made that whatever portion of the money does not belong to the defendant Washburn belongs to the plaintiff. 147 Mass. 344. After that decision a decree was made upon the same report which was passed upon by us, charging the defendant Washburn with $234.15 and costs. He appeals.
We presume that the amount of the decree was reached in the following way. The sum of $575 being the amount of the defendant’s charges for expenses, services, etc., as found in the report, w'as deducted from the principal sum, leaving $175. On the last named sum interest was computed from the date of the writ, November 25, 1884, to the date of the decree, July 15, 1890, being five years, seven months, and twenty days. This would be 33.8^ per cent, which, neglecting the fraction, would give $59.15. That sum added to the principal gives the amount of the decree. The defendant was not allowed for a payment of $93 made in July, 1883, to Moore, the general owner. This was the only sum not allowed to which the report disclosed any claim on the part of Washburn.
When this sum was paid, the plaintiff had the same right that he has now, as against Moore. Washburn had notice that the
The plaintiff argues that the greater number of the items allowed to the defendant should not have been deducted from the fund. But the plaintiff did not appeal, and the objection is not open. May v. Gates, 137 Mass. 389. The allowance seems to have accomplished substantial justice, as the suits in which the services were rendered really were for the benefit of the plaintiff, and it would seem from the report that it was understood between the parties that the expenses of the litigation should be deducted before any payment to the plaintiff.
Decree affirmed.