Malden & Melrose Gas Light Co. v. Chandler , 209 Mass. 354 ( 1911 )

Braley, J.

The plaintiff desired to enlarge its works, and the board of directors voted that the defendant, who was the president of the company, be appointed with the vice-president as a committee “ with authority ... to purchase . . . such additional land for the enlargement of the company’s business as in their judgment may be advisable.” The defendant, acting under the vote, appears to have conducted the negotiations which resulted in the purchase and a transfer of title to the plaintiff of the parcels of land described in the bills of complaint. It is settled, that, in the exercise of the authority conferred upon him, the defendant could not enrich himself at the expense of his principal by charging and receiving a larger price than that for which he actually bought the property. Having been appointed to act in the plaintiff’s interest, he was bound to buy on the best possible terms, and he could not directly or indirectly make a profit for himself. If as alleged, he bought for much less than the price he represented to the plaintiff, he would be accountable for the money which the company paid him in ignorance of the deception. Greenfield Savings Bank v. Simons, 133 Mass. 415. Quinn v. Burton, 195 Mass. 277, 279. Kilbourn v. Sunderland, 130 U. S. 505.

The evidence at the trial as to the terms of sale was contradictory. If the defendant’s testimony was accepted, the payments received by him did not exceed the price for which each estate had been purchased, while the evidence of the plaintiff tended to support its contention, that it had been deliberately defrauded. The credibility of the witnesses was for the presiding judge to determine, and it must be assumed that the evidence, which is fully recited, justified the finding that the money had been converted. But the cases being before us on exceptions, the refusal of the judge to make certain findings of fact requested by the defendant and the general finding of conversion cannot be reviewed, as only questions of law are open. Kennedy v. Welch, 196 Mass. 592. The findings upon which the judge decided that there had been a conversion and the facts upon which he refused the defendant’s second request were not stated. It only appears that certain facts were found which rendered these requests inapplicable. The findings manifestly must have been adverse, and, if the defendant desired further information as to what they were, he should have applied for and obtained them. If he deemed the conclusions to have been wholly unwarranted, he fails to show that he has been aggrieved, for we do not understand him to contend, nor did he ask for a ruling, that upon all the evidence, independently of the pleadings, the judge could not find that the defendant acted dishonestly and accordingly have ordered a decree for the plaintiff., National Mahaiwe Bank v. Barry, 125 Mass. 20.

But, as to the first requests, the judge, on the assumption that unless he found the facts to be as therein set forth the plaintiff could not recover, refused to give them. The defendant in support of his exceptions relies on the familiar rule of equity pleading that the bill should contain a clear and accurate statement of the facts upon which the plaintiff rests its case for relief, and that it can introduce evidence only which tends to support the averments. It is then pressed that the facts recited in the requests are the essential allegations which the plaintiff was required to prove, and that unless the judge found that they had been proved a decree for the plaintiff could not be supported. It undoubtedly would have been enough to have alleged generally that the defendant as the agent of the plaintiff bought for a certain price the lands in question, and, having obtained unlawfully from the plaintiff a larger amount, he was chargeable with the overpayment, and it would be unnecessary to state minutely all the circumstances, which properly are matters of evidence. Rogers v. Ward, 8 Allen, 387. Lovell v. Farrington, 50 Maine, 239. Grove v. Rentch, 26 Md. 367, 377. R L. c. 159, § 12. And, if the action had been at law, a count for money had and received would have been sufficient. Cole v. Bates, 186 Mass. 584, 586. Foote v. Cotting, 195 Mass. 55, 63. The stating part of the bills set forth with much particularity the details of the transaction, but, even if there may have been unnecessary amplification, the material facts on which the plaintiff relied for relief are stated with certainty, and if proved they were sufficient to support the decree. The allegation recurs throughout the stating part, that the defendant bought for a specific price. It is then charged, as the foundation of the right of recovery, that, when the plan to defraud had been perfected, the wrong was finally consummated by obtaining from the plaintiff by false representations amounts very largely in excess of the amount the defendant actually had contracted to pay. The essential averment following the details of the scheme was that the money had been obtained wrongfully, and the finding of a conversion must have rested on this ground. If the plaintiff was confined to this averment, and, where there is a variance, recovery can be had only on the case stated in the bill and not upon the case made out by the evidence, the judge was not restricted to the actual price paid to the vendors. Gurney v. Ford, 2 Allen, 576. Brew v. Beard, 107 Mass. 64, 73. Harding v. Handy, 11 Wheat. 103. Crocket v. Lee, 7 Wheat. 522, 525. It might have fallen below or exceeded the amount stated and in either instance there would not have been a variance if he found that the plaintiff had been defrauded and then determined the amount that the defendant wrongfully received. The ruling refusing the requests should not be interpreted as meaning that if the evidence justified recovery the plaintiff could prevail even if the proof did not correspond with the averments. It was refused, and properly refused, because it omitted all reference to the fundamental allegation of liability which the judge was satisfied had been established.

We find no error in the admission and exclusion of evidence. Jennings v. Rooney, 183 Mass. 577, 580. Liddle v. Old Lowell National Bank, 158 Mass. 15. Graham v. Middleby, 185 Mass. 349, 353. Webb Granite & Construction Co. v. Boston Maine Railroad, 206 Mass. 572, 578.

Exceptions overruled.