BERNICE TYLER TURGEON vs. WILFRED EUGENE TURGEON.

BERNICE TYLER TURGEON vs. WILFRED EUGENE TURGEON.

326 Mass. 384

September 21, 1950 - November 2, 1950

Hampden County

Present: QUA, C.J., LUMMUS, SPALDING, WILLIAMS, & COUNIHAN, JJ.

An interlocutory decree confirming a master's report and a final decree dismissing the bill in a suit in equity were reversed and the suit was remanded for rehearing in the trial court where the master's report said little or nothing about the issue raised by the bill but instead dealt ambiguously with an issue not raised by the pleadings, concluding with a general finding "for the defendant."

BILL IN EQUITY, filed in the Superior Court on September 27, 1945.

Upon the filing of a master's report, a motion by the plaintiff to recommit "for the following purposes: 1. To enable the master to find all the constituent, basic, elemental or subsidiary facts upon which his ultimate conclusion is based so that the court may rule upon the legal effect of the transaction between the parties. . . . 3. That the master find the nature of the transaction between the parties," was denied by Giles, J., by whose order an interlocutory decree confirming the master's report and a final decree dismissing the bill were entered. The plaintiff appealed from the final decree.

In this court the case was submitted on briefs.

M. Michelson & M. A. Gordon, for the plaintiff.

F. J. McKay, for the defendant.

SPALDING, J. The plaintiff, who is the wife of the defendant, brings this bill to establish her interest in a business standing in the defendant's name. The bill alleges that the plaintiff and the defendant established and conducted a business together; that the plaintiff furnished the capital for the business; that the understanding was that each was to have an equal share and ownership of the "joint accumulations

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in said business"; that the plaintiff placed trust and confidence in the defendant and permitted the business and the property used in connection with it to stand in the defendant's name; and that the defendant in violation of this understanding has refused to turn over to the plaintiff her share of the profits. The bill prays for a decree determining that the defendant holds the business and property in trust for the equal benefit of the plaintiff and himself.

The case was referred to a master under the usual rule (see Rule 86 of the Superior Court [1932]), and his report was confirmed by an interlocutory decree. Thereafter a final decree was entered dismissing the bill, from which the plaintiff appealed.

The plaintiff argues that the report of the master does not contain sufficient findings touching the essential issues in the case to afford an adequate basis for a decree, and asks that the case be remanded for further findings. A similar contention was made in the court below, without success, in support of a motion to recommit the master's report. We are of opinion that there is merit in this contention. It appears from the report of the master that the plaintiff and the defendant were engaged in a business enterprise together and that the plaintiff turned over to the defendant from time to time various sums of money. But the report sheds little or no light on the nature of these transactions or the agreement or understanding, if any, under which they were entered into. Consequently it is not possible to say whether or not the allegations set forth in the plaintiff's bill were proved.

The ultimate finding of the master was as follows: "At the time of the delivery of the check for two thousand ($2,000) dollars in 1935 or at any other time was there an understanding between the parties that the plaintiff was to be the owner of the business and that the defendant was to manage it for her, and I so find." This finding, which the master evidently considered was decisive of the case, is ambiguous, to say the least. As worded it could mean that

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there was an understanding to the effect that the plaintiff was to be the owner of the business and that the defendant was to manage it for her. Or it could mean that there was no such understanding. To arrive at the latter construction it is necessary to add the word "neither" and substitute "nor" for "or," so that the sentence would read, "Neither at the time of the delivery of the check for two thousand ($2,000) dollars in 1935 nor at any other time was there an understanding between the parties that the plaintiff was to be the owner of the business and that the defendant was to manage it for her." It is not unlikely that this is what the master intended to say inasmuch as the next and concluding sentence of the report reads, "On the foregoing facts and on all the evidence presented to me I, therefore, find for the defendant." But even if we were at liberty to place this construction on the report, it does not answer the plaintiff's argument, namely, that the report does not deal adequately with the issue on which the bill is framed. That issue is whether the defendant holds a portion of the business and the property used in connection with it in trust for the plaintiff. Touching that issue the report says little or nothing. Instead it dealt -- and somewhat ambiguously -- with an issue not raised by the pleadings. This defect is not cured by the general finding for the defendant. The parties were entitled to subsidiary findings touching the relevant and vital issues of the case. See Dodge v. Anna Jaques Hospital, 301 Mass. 431 , 436; New England Factors, Inc. v. Genstil, 322 Mass. 36 , 43.

"Where the facts on which the rights of the parties depend have not been ascertained at the trial it is within the power of the court, in its discretion and of its own motion, to recommit the cause for retrial." DeVeer v. Pierson, 222 Mass. 167 , 175. Watkins v. Simplex Time Recorder Co. 316 Mass. 217 , 224-225, and cases cited. We are of opinion that this is such a case. We reach this conclusion with some reluctance as it will mean further delay in a case already inordinately delayed. (It appears that more than two and a half years have elapsed between the time when hearings were

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begun and the filing of the master's report.) But we see no escape from it. Whether the rehearing should be before the court or before a master is for the Superior Court to determine. In the event the latter course is pursued the judge is to determine to what extent consistent with this opinion the report of the master is to be set aside.

The entry is to be: Final decree reversed; interlocutory decree confirming report of master reversed; the suit to stand for further proceedings in the Superior Court.

So ordered.