Nichols v. Rogers

139 Mass. 146 | Mass. | 1885

C. Allen, J.

The bill in this case was filed in less than six months after the date of the agreement. It may be assumed, since it is not disputed, that under the agreement the defendant became a trustee, and that he is, or at a proper time will be, accountable as such. But the agreement vested in him large powers and a wide discretion, and fixed no time within which the trust should be executed. The service which the defendant assumed might well require considerable time for its successful performance. The bill as originally drawn contains no averment that a reasonable time has elapsed, or that the defendant has completed his service or abandoned his efforts under the agreement, or that he has in any respect acted in bad faith; but it alleges that, at a date which was within three months after the agreement was entered into, the plaintiff requested the defendant to make to him a conveyance of one third interest in the property. This demand was not in conformity to the agreement, but was in contravention of it. The plaintiff was not entitled as of right to the share which he asked for. There was no resulting trust, as under the agreement the plaintiff was not entitled to any certain specific share. McGowan v. McGowan, 14 Gray, 119. We cannot see that a reasonable time had elapsed at the time of filing the bill. Seamans v. Gibbs, 132 Mass. 239. It follows, that the bill does not on its face show any ground for equitable relief existing at its date.

By amendment, the plaintiff has added two further averments. The first is an attempt to negative the authority of the trustee to form a corporation to hold and manage the property. Without now considering whether the written agreement does not import such authority, let it be assumed as alleged; and the grounds of objection to the original bill are not removed. The second, at first sight, looks like a charge of maladministration. But it is plain that the language ought to be construed with considerable strictness; and the plaintiff’s counsel only contends that this is an averment of that which equity regards as a fraud, and that the charge of fraud is intended merely to characterize the legal or equitable result of the facts set forth. It is not easy to accept the charge as meaning what it says, since it seems absurd on its face to suppose that the defendant would give $1300 in money and one tenth of the mine in exchange for another one tenth of the mine. Still, the charge unquestionably presents a matter which would be suitable for investigation on a final accounting. The difficulty at present is, that it is not averred that the defendant did the acts prior to the filing of the bill. The amendment is dated eight months after the bill; and since, by our practice, under the 25th Chancery Rule, matters formerly considered as suitable for a supplemental bill may be charged by way of amendment to the original bill, these matters so charged may, for all we know to the contrary, have been of subsequent occurrence. If so, they alone would not support the bill. Pinch v. Anthony, 10 Allen, 470. Evans v. Bagshaw, L. R. 8 Eq. 469; L. R. 5 Ch. 340. Tonkin v. Lethbridge, G. Coop. 43. Milner v. Milner, 2 Edw. Ch. 114. Besides, there is a generality in the averment which is not consistent with the certainty required when fraud is charged. Wallingford v. Mutual Society, 5 App. Cas. 685, 697. There is no suggestion that, in any account rendered or in any formal statement made, the defendant has refused to recognize all the rights to which the plaintiff will be entitled when the whole matter is closed up. The averment that the defendant now denies that the plaintiff has any interest in a specific tenth part of the mine, and claims to hold the same to his own use, does not show such refusal clearly, or by fair implication. Bill dismissed.