Skolnick v. Greenburg

230 Mass. 359 | Mass. | 1918

De Courcy, J.

The main purposes of the bill are to obtain a partnership accounting and the redemption of the plaintiff’s real estate from certain mortgages. The first ground stated in the demurrers is want of equity. This must be overruled if the bill sets out facts calling for equitable relief. Conant v. Warren, 6 Gray, 562. Bliss v. Parks, 175 Mass. 539, 543.

1. As to the partnership: it is alleged that the plaintiff and the defendants Greenburg and Standard, on July 6, 1916, “entered into a copartnership agreement whereby they were to conduct theatrical entertainments and exhibit moving pictures in a building erected by them on said premises and were to lease portions of said building for their mutual benefit, and they have since that time been conducting said business as said partners.” It is further alleged that these two defendants have refused to render a proper account of the moneys received by them in connection with the alleged partnership business. Although these allegations are vague and general, and may well call for specifications before an answer is filed, we cannot say that the bill fails to state any ground for a partnership dissolution and accounting as against the defendants Greenburg and Standard. Ferry v. Henry, 4 Pick. 75. Field v. Craig, 8 Allen, 357. As against the defendant Rhoda Isenburg no case is set out which connects her with the partnership allegations. It is stated that she holds her title to the real estate in trust for the other defendants; but the bill does not allege that the real estate is any part of the legal or equitable assets of the alleged copartnership.

2. The fifteenth paragraph is too general and indefinite, and is insufficient to intelligibly inform the defendants what charges they are to answer. The special demurrer was rightly sustained, and the plaintiff failed to avail himself of the leave granted him to amend.

3. When this bill was filed (September 6, 1917) the title to the parcel of land in Lynn was as follows: The plaintiff owned an undivided one third interest, and Rhoda Isenburg two thirds, in the equity of redemption. The first' mortgage, for $4,000, dated March 31, 1916, and payable in six months, was almost a year overdue. The second, for $1,500, dated April 15, 1916, and payable in ninety- days, was more than a year overdue. The third was for $23,000, also dated April 15, 1916, payable in six months, with interest at twelve per cent. This was almost eleven months overdue. The fourth was for $15,000, dated September 16, 1916, payable on demand, with interest at twelve per .cent payable monthly. The defendant Greenburg was the mortgagee named in the last mortgage, and was assignee of the earlier ones. There is no allegation that the plaintiff has paid any money on account of these mortgages. It is stated, “the defendant Greenburg has taken possession under said mortgages or one of them . . . and has received the rents and profits of them;” but it does hot appear when possession was taken, or whether a substantial amount of rent has been collected. However, as the plaintiff alleges that he offers to pay what shall be found due under said mortgages, he is permitted by the express terms of R. L. c. 187, § 22, to commence a suit for redemption without a previous tender. As the mortgagee had published notices of sale under' the powers in the first and fourth mortgages before the commencement of the suit, and the amount due was not paid into court nor the sale enjoined, the statute authorized him to proceed with the sales. Sections 21 an,d 22 were drafted to conform to the decisions in Way v. Mullett, 143 Mass. 49, and Clark v. Griffin, 148 Mass. 540. See Commissioners- Report on Pub. Sts. c. 187, note.

The demurrer of the defendant Rhoda Isenburg was .sustained rightly. The demurrers of the other defendants presumably were sustained for multifariousness, as the plaintiff has joined in one suit an application to redeem mortgages held by the defendant Greenburg and a claim against Greenburg and Standard for a partnership accounting. But in view especially of the allegations of paragraph 14, in substance that said fourth mortgage is a partnership asset; and the allegations of paragraph 11, that the defendant Standard, the mortgagee named in the third mortgage, as part of the consideration was to pay off the first and second mortgages; the two subjects seem sufficiently connected with one another to allow their joinder in one bill. Ginn v. Almy, 212 Mass. 486, 493. Lovejoy v. Bailey, 214 Mass. 134, 151. Digney v. Blanchard, 226 Mass. 335.

It follows that the decree dismissing the bill .as to Rhoda Isenburg must be affirmed, with costs. The decree dismissing the bill as to the defendants Greenburg and Standard is to be reversed, and their demurrers overruled; except the special demurrer to paragraph fifteen, which is to be sustained.

Decree accordingly.