Pappathanos v. Coakley

263 Mass. 401 | Mass. | 1928

Wait, J.

After trial to a jury upon issues framed in the Superior Court, hearing upon the merits by a single judge of that court, and entry of a final decree dismissing the bill with costs, this cause is before us upon plaintiff’s bill of exceptions claimed in the course of the jury trial and her appeal from the final decree, and from interlocutory decrees or orders made January 4, 1926, refusing to vacate the allowance of a motion for framing issues to a jury and refusing to take the bill as confessed.

The issues to a jury were allowed properly.

A bill for an accounting by a fiduciary is within the general jurisdiction of equity, Dunne v. Cunningham, 234 Mass. 332; and although in such cases no absolute right to a jury trial exists, Parker v. Simpson, 180 Mass. 334, the court has power, even of its own motion, to direct jury issues if in its judgment desirable. See Farnham v. Lenox Motor Car Co. 229 Mass. 478, 482.

No fact is set out which indicates abuse of discretion.

The bill of exceptions presents for determination whether the plaintiff has been prejudiced by the exclusion and admission of evidence and by the refusal to instruct the jury as requested. The bill alleged,.and the plaintiff sought a finding, that the defendant, in March of 1918, received $150,000 in cash from one Baker, then acting as counsel for a person known throughout the trial as Mr. Blank. Baker died in November, 1919. A paper, purporting to be a receipt for $150,000 from Baker, reciting agreements in return for which the money was paid, dated March 26, 1918, and bearing the alleged signature of the defendant, was put in evidence. The defendant testified that the signature was not his and denied receiving the cash. Experts in handwriting on both sides testified that the signature was not the defendant’s. Other than the signature, there was no evidence that the defendant signed the paper, had anything to do with it, or that he received $150,000. A witness testified that on March 26,1918, he procured $150,000 in cash for Mr. Blank, went with him to Baker, saw the money handed to Baker, saw him count it, and heard him say there was $150,000. He was asked “Did Mr. Baker say anything in your presence at the time after he had counted the money as to what he was to do with the money? ” On objection and after conference with the judge, the plaintiff offered to show that Baker said that the $150,-000 must “be paid to the woman Oda Pappathanos [the plaintiff]] or to her attorney, and that a receipt was to be furnished to Mr. Blank.” This was excluded. The bill of exceptions recites that the exclusion “was not based upon a finding of want of good faith upon the part of Baker in making the statement, but upon other grounds.” The plaintiff contends that the exclusion of .this evidence was-error. No citation of authorities is needed to show that, had Baker been living at the time of trial, this statement of his, made out of court and not in the presence of the defendant, would be inadmissible against the defendant. By G. L. c. 233, § 65, a declaration of a deceased person shall not be inadmissible in evidence as hearsay if the court finds that it was made in good faith before the commencement of the action and upon the personal knowledge of the declarant. The statute has no application to any rule of exclusion except that of hearsay. Horan v. Boston Elevated Railway, 237 Mass. 245. If on any other ground the evidence offered is objectionable, the statute does not render it admissible. Evers v. Gilfoil, 247 Mass. 219. We cannot say the judge" was wrong in excluding the evidence as irrelevant, immaterial, and res inter alios when offered against Coakley.

We find no error in the admission of the question put to the plaintiff in cross-examination. The scope of cross-examination was within the discretion of the judge. Ripley v. Taft, 253 Mass. 490. The conduct of the plaintiff after 1918 well might affect the finding of the jury upon her good faith in the pending proceeding. There was no abuse of discretion in permitting the questions.

No error appears in the treatment of the plaintiff's requests for instructions numbered 2, 8 and 9. She asked the court to instruct: “2. The plaintiff has produced evidence from which, if believed, the jury could find that the defendant, as her attorney, received on or about March 26, 1918, $150,000 in settlement of her claim against .... The defendant has alleged in his answer that he received- only $20,000 in said settlement. The defendant has the burden of showing by a fair preponderance of the evidence that he received only $20,000 in said settlement.” The judge was justified in not giving this in terms. He could not be compelled to express the opinion on the facts which is implied in the first sentence. Maidman v. Rose, 253 Mass. 594, 596. He charged fully and sufficiently with regard to this matter. The plaintiff was not entitled to select the words he should use.

The instructions given sufficiently covered the rest of this. request. The bill was for an accounting by a fiduciary. The burden of proof in such a proceeding is on the accountant, after he has admitted the relation and the receipt of a certain sum, to prove that he has disposed properly of the amount for which he is accountable, and to show what that amount is. Little v. Phipps, 208 Mass. 331. Here, however, the judge was not charging with reference to the pleadings, but in respect to an issue framed for the jury. That issue was: “What amount of money, apart from the $7,000 received directly by the plaintiff, did the defendant on or about March 26 or 27, 1918, actually receive from Mr. Blank or his attorney, Herbert L. Baker, in settlement of the plaintiff’s claim against said Mr. Blank?” Under it, in substance, both parties had affirmatives to maintain, and both bore appropriate burdens. The judge was right in instructing that the burden of proving the amount to be $150,000 was on the plaintiff. That was her assertion and her claim. The defendant could not be held to account for $150,000 unless she proved that he received it. The charge discriminated correctly between an accountant’s burden and that of the plaintiff in fixing the amount to be accounted for. See Dorr v. Tremont National Bank, 128 Mass. 349, 358, et seq. Speaking generally, the burden of proof where issues are framed is on the plaintiff. The eighth and ninth requests were covered in substance by the instructions given. The judge, as just stated, was not bound to comment on particular aspects of the evidence. The other exceptions, not being argued, are treated as waived.

There is nothing in the record to control the findings of the jury. As all the evidence is not reported, they must stand. They sustain the decision embodied in the final decree. We discover no error of law.

Exceptions overruled.

Orders and decrees affirmed with costs of this appeal,