Deutschman v. Dwyer , 223 Mass. 261 ( 1916 )

Braley, J.

The admissions in the answer coupled with the evidence amply sustain the finding of the presiding judge that the parties entered into a parol agreement which constituted a partnership as alleged in the bill. McMurtrie v. Guiler, 183 Mass. 451.

It is plain from its terms that, unless the refectory building in Franklin Park where the business of the firm was to be carried on could be leased, the partnership had no reason for its existence. The very life of the enterprise was understood by each partner as dependent upon the procurement from the owner, the city of Boston, of a concession or lease. And the further finding, that the defendant through prudent negotiations obtained the lease for “the benefit of said business” and in accordance with the partnership agreement, being well supported by the evidence should stand. While it is true that the partnership was at will and that the lease taken in the defendant’s own name is for a fixed term, the leasehold nevertheless was held by him not as his individual property but in trust for the benefit of himself and of the plaintiff. Lurie v. Pinanski, 215 Mass. 229, 231. Holmes v. Darling, 213 Mass. 303. See also Arnold v. Maxwell, ante, 47. To adopt the defendant’s contention of sole ownership would be to violate the fiduciary character of the partnership relation. We find no revisible error at the trial of the merits or in the interlocutory decree referring the case to a master to state the account, although the decree should have contained a clause decreeing a dissolution of the firm.

The leasehold being an asset of the partnership, the plaintiff was entitled to participation in its value in excess of the rent reserved as found by the master, and the defendant’s first, third and fourth exceptions are disposed of by what has been said. Freeman v. Freeman, 136 Mass. 260, 263.

The second exception, that the master incorrectly ruled that the findings of fact by the court "are final and conclusive” as to the plaintiff’s right to require the defendant to account for the value of the lease after the date of dissolution, requires no comment, except that it has not been overlooked. Eastern Bridge & Structural Co. v. Worcester Auditorium Co. 216 Mass. 426, 429.

The decree should be so modified as to include an order for dissolution, and when modified it is affirmed with costs. Wiggins v. Brand, 202 Mass. 141, 147.

Ordered accordingly.