271 Mass. 106 | Mass. | 1930
This is a suit in equity arising out of the dissolution of “The Shelley Company,” a partnership engaged in the business of tax consultants and consisting of the four plaintiffs and the two defendants. The bill seeks to have the dissolution agreement rescinded, and the defendants compelled to render an account of certain transactions alleged to have been undertaken by them in behalf of the partnership.
The case was referred to a master. He found that all the parties to the suit were tax consultants, who, previous to the formation of the partnership, had been internal revenue agents of large experience in tax matters gained in the service of the Federal government. On January 2, 1919, Miller, Smith and Plumb began business as partners, and shortly thereafter Peckham and Shelley joined the partnership which adopted the name of “The Shelley Company.” There were no partnership articles, and no definite term was agreed upon for its duration. It was understood that the partners were to share the profits and expenses equally. Each of them was to give his time, energy and ability to the business, and to assist his associates in their work. The defendants, Peckham and Smith, were to devote themselves more particularly to securing business, while Shelley and Miller were to prepare claims and briefs and take charge of the manage
At the request of Smith a meeting of The Shelley Company was held in Boston at which all the partners were present except Plumb. At this meeting Smith stated that his reason for calling them together was that he had decided to withdraw from the firm. Peckham then announced that if Smith withdrew he would do likewise. A discussion followed respecting the disposition of the pending business. It was agreed that each member should be entitled to take over the retainer clients he had brought into the firm, and that each member who was handling contingent fee cases should continue to prosecute those cases to a conclusion for the benefit of the partnership. It was understood that the firm should have no interest in any new business secured or negotiated after January 8, 1923. Smith suggested that the dissolution should take effect as of January 1,1923. Shelley stated that he would agree if there was no new business since that date. In answer to a question of Shelley each partner present said that he had not secured any new business since that date. It was then agreed by all present that the dissolution should date as of January 1, and that each member should have the fees from his retainer clients after that date. The meeting was adjourned to the following week when it was expected that Plumb would be present.
. On January 17 a second meeting was held at which all the partners were present. Plumb was informed of all that occurred at the meeting on January 8, and assented to the arrangements then made.
The bill, as amended, in substance alleges that by reason
The answers deny that the dissolution agreement was to be effective January 1, 1923, because of any representations made by the defendants or that the dissolution was upon the terms stated in the bill, or that the defendants fraudulently concealed from the plaintiffs cases or business belonging to the partnership, or that they have failed to account for' the proceeds of partnership cases. The answers also aver that the defendants have been guilty of laches in bringing the bill. As counsel for the plaintiffs admitted at the hearing in the Superior Court that the partnership was not entitled to an accounting with reference to services rendered the Stoughton Mills, that case need not be considered.
The trial judge in his “Rulings and Order for Decree” allowed the plaintiffs’ motions to amend the bill; overruled the defendants’ objections to the master’s report; ruled as matter of law that the partnership was not legally dissolved until January 17, 1923; denied the defendants’ requests for rulings so far as inconsistent with “the facts found and rulings” made by the master and by the judge; and confirmed the master’s report. In accordance with these rulings interlocutory decrees were entered from which the defendants appealed. A final decree was entered ordering the defendants to account to the partnership for the sum of $80,057.47 with interest from August 24, 1927, to October 31, 1929, amounting to $10,497.85, making a total sum of $90,555.32, and that the defendants within thirty days from the date of the decree pay to the plaintiffs four sixths of said sum. The decree also ordered the defendant Peckham to account to the partnership for the total sum of $14,154.94, which included interest, and that Peckham within thirty days from the date of the decree pay over to the plaintiffs four sixths of that amount. The defendants appealed from the final decree.
The allowance of the plaintiffs’ motions to amend the bill was a matter within the sound judicial discretion of the
The defendants contend that they are not accountable for fees received from the Hathaway Manufacturing Company and the Acushnet Mills Corporation for the reason that they were not cases “on hand” belonging to the partnership on January 1 or on January 8, 1923. The evidence is not reported; the master’s findings relating to these cases must stand as it does not appear that they were inconsistent, contradictory or plainly wrong. Coolidge v. Old Colony Trust Co. 259 Mass. 515, 517. The master found that on December 18, 1922, one Stanton, the treasurer of both these companies, wrote a letter to The Shelley Company requesting an interview with Peckham for the purpose of discussing Federal taxes affecting these companies. This letter apparently did not come to the attention of any partner, and on December 26, 1922, Stanton again wrote to The Shelley Company enclosing a copy of his letter of December 18. Smith opened this letter in Shelley’s absence and sent a reply promising to arrange a conference after January 1. Subsequently Smith arranged an interview for Peckham with the auditor of the companies to be held in New Bedford on January 5, and informed Peckham of the appointment so made. Peck-ham went to New Bedford and' discussed at length with Stanton and the auditor the matter of certain additional excess profits taxes which had been collected from the corporations, and in regard to which the corporations de
It is a reasonable inference from facts found by the master that the agreement, made at the meeting held on January 8, that the dissolution of the firm should date as of January 1, was based on the understanding that no new business had been secured by any of the partners after January 1. Moreover the master found that the plaintiffs “would not at the meeting of January 8 have assented to the dating back of the dissolution to January 1 if they had known of” the defendants’ correspondence and conferences with the officials of the Hathaway and Acushnet mills. It was further found “that the defendant Peckham, at the meeting of January 8, 1923, and thereafter, intentionally failed 'to disclose to the plaintiffs the facts concerning his conversations and communications with officials of the Hathaway Manufacturing Company, [and] the Acushnet Mills Corporation . . . ; that his purpose in failing to disclose said facts was to avoid controversy with the plaintiffs as to his liability to account to the partner
The partners owed to each other the highest degree of good faith and fair dealing in all partnership matters, and none could rightfully violate that duty for his own advantage. Flint v. Codman, 247 Mass. 463. This duty devolved on each to disclose to the others any material facts relating to transactions connected with partnership interests. Hawkes v. Lackey, 207 Mass. 424, 432, 433. Arnold v. Maxwell, 223 Mass. 47,49, 50. It is plain from the facts found by the master that the Hathaway and Acushnet cases were of such a nature as to be material in arriving at an agreement for the dissolution of the partnership. This conclusion is strengthened by the interpretation which the defendants themselves placed on other cases similar to those in question. It appears that at the meeting held on January 8, Miller suggested that each partner should furnish a list of all cases he had on hand involving contingent fees, and Shelley wrote down the names of the cases as each partner called them off. Included in the defendant Smith’s list of unfinished cases was that of S. P. Burton & Co. Respecting that case Smith testified that Burton had consulted him in regard to a tax matter which Burton thought he would have taken up, but nothing further was ever done about it; that “Smith thought from his talk with Burton that it might develop into business, and if it did, he thought he ought to account for it as partnership business.” It was further found by the master that on Peckham’s list of cases “on hand” was that of Driscoll, Hall & Church for whom, as Peckham testified, nothing had been done before the dissolution “except to get the story.” The failure to disclose the defendants’ dealings with the Hathaway and Acushnet mills officials warranted a finding that there was a concealment of facts which the defendants must have realized they were in duty bound to disclose to their copartners. It follows that the agreement to date back the dissolution of the partnership to January 1, 1923, should be set aside.
As the agreement that the dissolution should be effective as of January 1 is to be rescinded, the question remains
The question whether the defendants are required to account for fees received from the Massasoit Manufacturing Company will next be considered. As previously stated, it was agreed that at the meeting held on January 8 each member who was handling contingent fee cases should continue to prosecute them to a conclusion for the benefit of the partnership,0 and that after payment of expenses incurred, the profits should be divided equally. Included in the list of cases given by Peckham as being in his charge was a claim of the Massasoit Manufacturing Company for a refund of Federal taxes. Sometime before the meeting the plaintiff Miller had been asked by Peckham to take care of this case and Miller had agreed to do so, but had done nothing except to attend a conference with Peckham and the company’s treasurer. In September, 1923, Peckham received an inquiry from the company as to what progress had been made. He again asked Miller to take up the prosecution of the claim and the latter agreed to do so, but no claim was filed, and nothing further was done by any of ,the plaintiffs. On February 16, 1924, Peckham called at the office of the Massasoit company and learned that nothing had been done. Finding that the claim would shortly be barred by statutory limitation, he agreed with the company to handle the case on a contingent fee basis. He prosecuted the case to a successful termination and recovered a fee which, after deducting expenses, amounted
It is not denied that the contract with the Massasoit company was a partnership asset on January 8. Peckham admitted that the case was to be handled by him for the benefit of the firm. Unless the partnership abandoned the case, he had no right secretly to secure it for himself. The only evidence of abandonment was the failure of Miller to prosecute it in accordance with his agreement with Peck-ham. As Peckham listed the case as being in his charge, the plaintiffs were justified in assuming that he would seasonably prosecute it for the benefit of the firm. Miller’s delay, without more, was not sufficient to justify Peckham’s proceeding with the case in his own behalf without bringing it to the attention of his copartners and obtaining their consent thereto. The fiduciary duty which he owed the plaintiffs continued during the time the partnership business was being settled and finally closed. Castle v. Marks, 50 App. Div. (N. Y.) 320, 322. He was not entitled, without becoming liable to account to the partnership, to obtain for himself in violation of his duty a profit which belonged to the firm. Holmes v. Darling, supra. Lindsay v. Swift, supra. Castle v. Marks, supra. St. 1922, c. 486. The case is analogous in principle with a situation where one partner secretly takes a lease in his own name of the premises where
This suit was begun September 23, 1927. It is the contention of the defendants that, even if they would have been accountable to the plaintiffs for fees received in the Hathaway, Acushnet and Massasoit cases had proceedings been seasonably instituted, laches constitute a bar to the present suit. We are unable to agree with this contention. Although the master found that early in 1923 the plaintiffs had knowledge that Peckham was prosecuting the claims of the first two corporations above mentioned, and that he received the fees paid in 1925, he further found that it was not until December 30, 1926, that the plaintiffs learned of the successful outcome of the proceedings; that on August
For the reasons hereinbefore stated, the objections to the master’s report which have been argued cannot be sustained. The others are treated as waived. Some of the defendants’ requests for rulings, although correct as abstract propositions of law, were not applicable to the facts in the case at bar. The others could not properly have been given. We do not deem it necessary to discuss the requests in detail. A careful examination of them fails to show any error of law in the refusal of the trial judge to give them. It follows that the interlocutory decrees and the final decree must be affirmed.
Ordered accordingly.