115 Mass. 259 | Mass. | 1874
The bill charges in substance that the money which is demanded of the defendants was originally received by the firm of Stark, Stanley & Co. out of a relief fund raised by subscription to aid mechanics and other sufferers by the great fire of 1872, upon the express trust that it should be used by the firm in reestablishing its business; that the money was first placed in the keeping of the defendant James H. Stark, one of the firm, who afterwards put it into the hands of his father John H. Stark, the other defendant, who had an old debt against the firm, both defendants knowing of the trust at the time, and that the money was to be used for no other purpose.
The bill then alleges that the other members of the firm after-wards retired from the partnership with an agreement that the plaintiff should have the money so appropriated, to be used by him for the purpose named ,• that he had accordingly made all necessary arrangements for recommencing and prosecuting the former business, but the defendants refused to give up the money, John H. Stark contending that he had a right to apply it to the payment of his debt. It is further stated in an amendment to the bill, that a promissory note without interest was given by the firm, when the money was advanced, to Mr. Norcross the treasurer of the committee having charge of the relief fund, upon the understanding and agreement that if the money was used for the purpose named the note should not be called for; and that when the other partners left, the agreement was that the plaintiff should have the fund if he would take up this note and procure the a»
The prayer is that the defendants may be required to deliver the money to the plaintiff, and for general relief.
The answers deny the creation or existence of any trust growing out of the transaction with the treasurer of the relief fund.
The case was heard by a justice of this court, and this is a simple appeal from his final decree, without any report of evidence or fact found upon which the decree was made. The only question before us is whether the decree follows the frame of the bill and is justified by the record. If it does, then it must be presumed that all the facts necessary to support it were proved at the hearing. It is enough if under the pleadings we can see that it is possible to make out a case which would justify the decree. Smith v. Townsend, 109 Mass. 500. Ross v. Harper, 99 Mass. 175.
The defendants contend that the allegation that a note was given for the money is equivalent to an allegation that the legal and equitable title to the money vested in the firm, who could have no defence to an action on the note. But it does not appear that the note was negotiable, or when it was payable, or that it was payable absolutely. All the allegations, taken together, show that it was given upon a contemporaneous agreement in the nature of a condition which, for all that appears, was in writing, and we cannot see that the whole transaction and all the agreements construed together did not appear at the hearing to be entirely consistent with the express trust alleged.
Nor can we see that the words of the alleged trust devoting this money to aid the defendants “ in reestablishing their business,” as applied to the subject matter and interpreted by the surrounding circumstances, were not properly held by the judge to exclude the payment of a preexisting debt as a preliminary step towards reestablishing their business.
Decree affirmed with costé.
