Davis v. Green ( 1928 )

Carroll, J.

The plaintiff in this suit in equity sought to restrain the defendant from foreclosing a mortgage and asked that an account be taken. The bill alleged that the defendant, as the plaintiff’s agent, agreed to collect the rents and to pay the expenses and the interest and principal on two mortgages on the property 57 Camden Street, Boston, “each for One Thousand ($1000.00) Dollars each, held by L. H. H. Johnson and the defendant”; that the defendant has collected the rents and refuses to account for the money received and has applied it to his own uses, and has threatened to foreclose the second mortgage on the plaintiff’s estate at 57 Camden Street.

The defendant in his answer alleged that he made proper application of the money received and has accounted verbally but not in writing to the plaintiff. He also ‘ ‘ specifically calls to the attention of the court the bill in equity No. 25027 wherein this plaintiff brought action against this defendant and set up an entirely different issue than that contained in paragraph (1) of the plaintiff’s bill in this case.” In the Superior Court the bill was dismissed.

At the hearing before the master it appeared that the defendant, Benjamin Green, now deceased, owned certain real estate on Northampton Street, Boston, and the plaintiff in December, 1924, brought a suit in equity against Green “for an accounting and for a deed” of this property. This was the case No. 25027 referred to in the defendant’s answer. The case No. 25027 was heard in the Superior Court and a decree entered dismissing the bill. As we construe the pleadings in the case now before us, the conduct of the defendant in his dealings with the Northampton Street property is not involved. The plaintiff refers specifically to the Camden Street property and to no other real estate. There is nothing in the answer showing that the Northampton Street property is involved. The only reference to it is in the allegation that in the earlier case the plaintiff set up an entirely different issue. The only matters in controversy in the present suit concern the Camden Street property and the only issues involved relate to the management of that property. The master found that the defendant, Green, should have received from April 1, 1920, to October 15, 1924, a total income from it amounting to $2,098.25; that he made proper disbursements of $758.73 and was entitled to compensation of $188.97 for placing mortgages and collecting rents, and that a balance was due the plaintiff of $1,150.55. The evidence is not reported.

The interlocutory decree sustained the defendant’s eleventh exception to the master’s report and allowed to the defendant $81.50 relating to a loan from one Johnson, thereby increasing the amount to be credited to the defendant to $1,029.20 and decreasing the balance due the plaintiff to $1,069.05. - The master found there was no evidence that the plaintiff authorized the defendant to pay this $81.50, and we are unable to find any evidence that the defendant actually paid it. The evidence is not reported and the finding; of the master disallowing the sum of $81.50 must stand. The interlocutory decree, therefore, must be modified by striking out the second paragraph, and by striking out the words “except as changed hereby” from the fourth paragraph; as thus modified it is affirmed.

The final decree, it would appear, dismissed the bill on the ground that “the value of the use of the defendant’s property on Northampton Street, which the plaintiff had for many years, over and above her payments upon that property, exceeds any sum due to the plaintiff upon an accounting as to the Camden Street property.” As we have said, the Northampton Street property is not involved in the present suit, which relates solely to the Camden Street property, and under the pleadings the state of the account in reference to the Northampton Street property could not be considered. The fact that the master went into the accounts relating to that property and found that nothing was due the plaintiff on it did not support the final decree charging the plaintiff with the value of the use of the premises on Northampton Street to offset the amount due from the Camden Street premises. Because the Northampton Street accounts were not open under the pleadings, there is nothing in the plaintiff’s contention that she should be allowed for money alleged to have been paid for her on this property. It follows that the interlocutory decree is to be modified as already indicated and the final decree is to be reversed and a decree entered for the plaintiff in the sum of $1,150.55, with interest from the date of the master’s report. G. L. c. 235, § 8. Hawkes v. Lackey, 207 Mass. 424, 434.

Ordered accordingly.