213 Mass. 545 | Mass. | 1913
The evidence not having been reported, the master’s findings of fact are conclusive, and it follows that, when the
It is true that the plaintiff, although prepared to advance the purchase price, did not do so, and consequently there is no resulting trust. Bourke v. Callanan, 160 Mass. 195. But, whenever an attorney at law, who is retained or employed to purchase, buys the property indirectly on his own account without the client’s assent, as in the case at bar, a constructive trust arises, and he will be held to be a trustee at the election of his client, who is entitled to the benefit of the transaction. Hawkes v. Lackey, 207 Mass. 424, where the cases are collected. Manheim v. Woods, ante, 537.
The defense of loches, not having been pleaded, is not open. Stewart v. Joyce, 201 Mass. 301. But, if pleaded, we should hesitate long before holding that the delay of less than two years, where the plaintiff is shown to have been of foreign birth and unacquainted with our language, and during the time had implicit faith in the defendant’s singleness of purpose and believed from his conduct and statements that he had acted in her behalf until he refused to recognize her rights and claimed the property as his own, when thereupon she brought suit, should bar relief in a court <of conscience. Sawyer v. Cook, 188 Mass. 163.
Nor did the master or the judge err in refusing to allow the defendant interest on the purchase price. It is to be presumed that he knew the law, and, having acted to the disadvantage of the plaintiff, he should not be permitted to receive compensation
The exception to the admission of evidence, not having been argued, calls for no comment, and, finding no error of law in the refusals to rule as requested or in the master’s report, the exceptions are overruled.
So ordered.