Moors v. Washburn , 159 Mass. 172 ( 1893 )

Holmes, J.

This case was originally an action at law, and afterwards was amended into a bill in equity to establish the plaintiff’s rights in and to recover a fund of $750, or that part of it to which he might be entitled. The fund is the proceeds of an action of trover for certain wool, brought by a warehouseman, Pratt v. Boston Heel & Leather Co. 134 Mass. 300, and is in the hands of the defendant Washburn as attorney. The plaintiff claims under a blanket pledge or mortgage of the wool, made to secure all indebtedness of Moore, the general owner. The case has been before this court on a former occasion, and it is settled by the decision then made that whatever portion of the money does not belong to the defendant Washburn belongs to the plaintiff. 147 Mass. 344. After that decision a decree was made upon the same report which was passed upon by us, charging the defendant Washburn with $234.15 and costs. He appeals.

We presume that the amount of the decree was reached in the following way. The sum of $575 being the amount of the defendant’s charges for expenses, services, etc., as found in the report, w'as deducted from the principal sum, leaving $175. On the last named sum interest was computed from the date of the writ, November 25, 1884, to the date of the decree, July 15, 1890, being five years, seven months, and twenty days. This would be 33.8^ per cent, which, neglecting the fraction, would give $59.15. That sum added to the principal gives the amount of the decree. The defendant was not allowed for a payment of $93 made in July, 1883, to Moore, the general owner. This was the only sum not allowed to which the report disclosed any claim on the part of Washburn.

When this sum was paid, the plaintiff had the same right that he has now, as against Moore. Washburn had notice that the plaintiff made a claim as pledgee, and did not know the amount of his claim. He was not aware that the pledge extended beyond a specific loan, which in fact had been paid, but he knew that the plaintiff still made a claim. He had made several requests to the plaintiff for a statement of his account, but had not received it. Under these circumstances, the court are of opinion that he paid the $93 at his peril, and that this payment properly was disallowed. The defendant argues that he is entitled to further allowances, but there is no sufficient foundation for them in the report, and it is now too late to go beyond the facts there stated. The parties were content to have a decree framed on those facts, and if the defendant got all to which the report entitled him, he has no ground of complaint. We see no reason for denying the plaintiff interest from the date of the writ, and costs. There is nothing to show that Washburn kept this fund identified as a separate trust fund, or that he has not had the use of the money belonging to the plaintiff. By his answer, he denied the plaintiff’s right to any part of the sum. Furthermore, when a decree is affirmed on appeal, usually we should not disturb the discretion of the court of first instance as to costs. The Maggie J. Smith, 123 U. S. 349, 356.

The plaintiff argues that the greater number of the items allowed to the defendant should not have been deducted from the fund. But the plaintiff did not appeal, and the objection is not open. May v. Gates, 137 Mass. 389. The allowance seems to have accomplished substantial justice, as the suits in which the services were rendered really were for the benefit of the plaintiff, and it would seem from the report that it was understood between the parties that the expenses of the litigation should be deducted before any payment to the plaintiff.

Decree affirmed.