321 Mass. 375 | Mass. | 1947
This is a suit in equity, the parties to which are husband and wife. The bill contains allegations that on February 27, 1942, the plaintiff "executed a power of attorney . . . naming as attorney, the defendant, who was then and still is the plaintiff’s wife. That thereafter, the defendant, purporting to act under said power and by its authority,, from time to time interfered with the rights of the plaintiff in the possession or control and enjoyment of his individually owned property, namely: a 1942 Packard, touring clipper sedan; one insurance policy on the life of your plaintiff, written by the Prudential Insurance Company, in the amount of $5,000; seven one hundred dollar war bonds, and much personal property; and that she has continued to so interfere to the date hereof and threatens to continue such interference hereafter. That on October 20, 1943, your plaintiff revoked said ‘power of attorney,’ giving due notice of said revocation to the defendant.” The prayers of the bill are: "I That temporary restraining order issue, restraining the said defendant from interfering with the plaintiff in the possession, control and enjoyment of his individually owned property. II That the said ‘power of attorney’ be declared null and void, and that the defendant be ordered to relinquish same to the plaintiff. Ill That the defendant be permanently enjoined from acting under the authority of said ‘power of attorney,’ and that she be permanently enjoined from interfering with your plaintiff in the possession, control and enjoyment of his individually owned property. IV And for such other relief as this Honorable Court shall deem meet.” In her answer the defendant denied that she had interfered with the rights of the plaintiff so far as possession and enjoyment of his property are concerned except as authorized by the power of attorney referred to in the bill, and set up "that the 1942 Packard touring clipper sedan was bought by the plaintiff on condition of sale and the title to the same was held by a finance company as security for the balance of the purchase price; that the plaintiff defaulted in his pay
The evidence being reported, it is our duty under the familiar rule to examine it and to decide the case according to our own judgment, giving due weight to the findings of fact of the judge which will not be reversed unless plainly wrong. The material facts found by the judge and those we find ourselves (Lowell Bar Association v. Loeb, 315 Mass. 176, 178) may be summed up as follows: Sometime prior to February 27, 1942, the parties were married. The plaintiff was then “in the army.” At the time of the hearing he was a lieutenant colonel in the army air force of the United States, and had been in the service for about eight years. On February 27, -1942, he was stationed at Bangor in the State of Maine. On that day he executed and delivered to the defendant a power of attorney in which he appointed her his lawful attorney, and so far as here material conferred upon her “powers irrevocable, for me and in my name and stead to use, to ask, demand, levy, require, recover, and receive of and from all and every person or persons, whomsoever the same shall or may concern, all and singular sums and sum of money, debts, goods, wares, merchandise, effects and things whatsoever and wheresoever they shall and may be found due, owing, payable, belonging and coming unto me, the constituent, by any ways and means whatsoever, and more especially to accept,
The contentions of the defendant are that the relief granted by the final decree entered by the judge is not within the scope of the bill, that the decree in substance awards damages for the conversion of property properly the subject of an action at law, which would not lie since the parties are husband and wife, and that this does not give the plaintiff any standing in equity.
Upon the appeal now before us, since the evidence is reported, all questions of law, fact.and discretion are open for our decision. Kevorkian v. Moors, 299 Mass. 163, 166. Bernhardt v. Atlantic Finance Corp. 311 Mass. 183, 184. Lowell Bar Association v. Loeb, 315 Mass. 176, 178, and .cases cited. We are not bound by the ruling of .the judge -that the “bill does not contain properiallegations or prayer for the return of the personal property .or..am accounting •therefor.” We are of opinion that its allegations properly interpreted are sufficient to support the relief granted, and that the relief granted was not inconsistent with the special prayers of the bill. This being so, the plaintiff may obtain any relief consistent with the nature of his case under the prayer in the bill for general relief. Bleck v. East Boston Co. 302 Mass. 127. It appears from the record that when the bill was filed the defendant had not sold the automobile in question. The bill was filed on October 21, 1943, and the record discloses that the defendant did not sell the automobile until February, 1944. It is a fair inference that when the bill was filed the plaintiff was proceeding on the assumption that the war bonds involved were still in the defendant’s possession. The evidence does not disclose whether she disposed of them before or after the bill was filed, and the policy of insurance referred to in the bill was in her possession at the time of the hearing. In the bill the plaintiff alleged that, the defendant was interfering with his possession and control of the personal property individually owned by him including that with which we are now concerned, and by the special prayers sought in substance that. .she. be
Blumenthal v. Blumenthal, 303 Mass. 275, and Charney v. Charney, 316 Mass. 580, relied upon by the defendant, are not in point. In each of the cases just cited the relief sought by the bill was the payment of a debt alleged to be due from the husband to the wife under a separation agreement, and relief was denied on the ground that the bill was brought, to enforce n simple contract between husband and wife for the payment of money and hence was not within the jurisdiction of our courts of equity. To the same effect see Weidman v. Weidman, 274 Mass. 118. There is nothing said in Matek v. Matek, 318 Mass. 677, in conflict with what we have said here.
.The decree entered in the court below is to be modified by including an order that the defendant pay to the plaintiff •the amount therein decreed to be due from her to him, and as thus modified it is
, Affirmed.