E. Kronman, Inc. v. Bunn Bros.

265 Mass. 549

• Court: Massachusetts Supreme Judicial Court
• Decided: January 4, 1929
• Status: Published

Opinion

Sanderson, J.

This is a bill in equity entered March 5, 1925, in which the plaintiff seeks to enjoin the defendant Mahoney from selling on foreclosure proceedings or otherwise certain personal property alleged to have been sold by the plaintiff to the defendant Bunn Bros. Inc., on conditional sale, reserving title in the plaintiff until payment was made. A restraining order was issued and on further hearing an interlocutory decree was entered March 6, 1925, dissolving the restraining order, directing the defendant Mahoney to give a bond conditioned to reimburse and compensate the plaintiff for any loss or damage sustained by it in the foreclosure of the mortgage by reason of the sale of the personal property described in the bill of complaint, and ordering the plaintiff to give the defendant Mahoney a bond conditioned to pay her any loss occasioned by the present proceedings if she should prevail. Mahoney represents the defendant bank and has no interest in the matter at issue. She will be referred to as the defendant.

The case was sent to a master to report his findings together with such facts and questions of law as either party might request. Upon the coming in of the report a single justice made additional findings of fact, and an interlocutory decree was entered overruling exceptions and confirming the report, from which the defendant appealed. Thereafter a final decree dismissing the bill was entered from which the plaintiff appealed. By decision of this court reported in 258 Mass. 562, a rescript was entered reversing the final decree and ordering the cause to stand for further proceedings in conformity with the opinion. On March 7, 1925, the defendant sold all the property referred to in the bill of complaint, except the oyster bar and equipment mentioned in section three of the bill.

The defendant’s contention, that the only question decided by the previous appeal related to the propriety of dismissing the bill because the plaintiff had not asked to have it amended, cannot be maintained. By that appeal it was .settled that the plaintiff was entitled to have its title to the property established as between it and the defendant; that as to the plaintiff’s property sold by the defendant the plaintiff was entitled to have damages assessed as for a conversion, and that these rights could be established upon the allegations of the bill without amendment. Donohue v. White, 247 Mass. 479. The plaintiff’s title to all the property described in the agreements annexed to the bill of complaint, filed March 5, 1925, was put in issue by the pleadings. It appeared from the former decision that there was a part of it of which the defendant did not take possession. Upon the pleadings and the issues tried, the plaintiff was entitled to damages for being wrongfully deprived of the property sold and to have its title established to the rest of the property. The rescript interpreted in the light of the opinion, which was specifically referred to as establishing the rule to- be followed in future proceedings in the case, ordered that these two things should be done. The decree from which the present appeal was taken conforms to the order of this court by establishing the plaintiff’s title to the property of which the defendant did not take possession, and awarding damages as to the rest. C. W. Hunt Co. v. Boston Elevated Railway, 217 Mass. 319. King v. Connors, 223 Mass. 305. The questions which were or might have been raised by the defendant on the former appeal if not then argued were waived. They cannot now be considered. Cohen v. Nagle, 190 Mass. 4, 13. Lyons v. Elston, 211 Mass. 478, 482. King v. Connors, supra. Curran v. Magee, 244 Mass. 1, 5. Edgecomb v. Edmonston, 258 Mass. 568. The defendant cannot now contend that she has not wrongfully converted the plaintiff’s property by selling it at the foreclosure sale.

In the former report the master did not fix the amount of the plaintiff’s damages and a further hearing was therefore necessary. The case was referred to the same master for “assessment of damages as for conversion of the property sold after bill was filed.” This order was authorized by the former decision of this court. Exceptions to the supplemental report numbered one to nine relate in part to findings upon evidence not reported. There was no reversible error in the finding relating to matters arising after the conversion, even if some of them were not sufficiently related to the decision to be material. Montague v. Boston & Albany Railroad, 124 Mass. 242, 249. The master based his findings upon market value, and correctly ruled that “fair market value is at least the highest price that a normal purchaser, not under peculiar compulsion, would have paid on or about March 7, 1925, at the premises numbered 615 Washington Street, Boston, in order to get the property.” Maguire v. Pan-American Amusement Co. 211 Mass. 22, 26. The contention is made that error appears from his earlier statement in the following language: “I have considered the time during which the articles have been used, the condition in which they were at the time of the conversion on account of the use, breakage, etc., and the cost of replacing the articles with orders [szV] equal to them in every respect.” These considerations were not improper for the master to have in mind when it is evident that his conclusion was based upon his own ruling as to what market value is. Bradley v. Hooker, 175 Mass. 142. Koski v. Haskins, 236 Mass. 346, 348. Wood v. Baldwin, 259 Mass. 499, 509.

The defendant further objects because the rule applied was market value upon the premises where the property was, contending that the value should be of the property dismantled and removed. But the value was properly determined at the place where the conversion occurred. It is not for the defendant who has converted the property where it was and as it was to contend that the plaintiff must recover on the basis of a value in some other place or under other conditions. This part of the ruling was right even if the further finding that the goods might have remained on the premises where they could have been examined by a purchaser or they could have been sold by the plaintiff to be used again in the restaurant business in the same premises was not justified. It appeared, however, that the property in question was on the premises more than two months after the conversion and that a restaurant business was later conducted at the same place.

The tenth and eleventh exceptions relate to the refusal of the master to strike out the testimony of the witness Link, who gave evidence as an expert on the value of the property converted. By order of court the whole of his testimony was annexed to the master’s supplementary report. The objections to this testimony are that the witness was not qualified, and that his testimony was incompetent and immaterial. He had seen the property and his years of experience in selling similar property made him a competent witness. He testified in substance that property of the kind under consideration would have a market value of twenty per cent of its cost after it had been used the length of time that the property in question had been in use. Such testimony as well as the other testimony of the witness might properly be considered by the master with the other evidence not reported in determining the market value in accordance with the rule stated by him.

In the denial of the defendant’s motion to recommit the master’s report we discover no reversible error. The master was required to find the fair market value of the property at the time of the conversion, but he was not to report the evidence upon which his finding was based. Raymond v. Stone, 246 Mass. 421. Jameson v. Hayes, 250 Mass. 302. He has stated his conclusions on the matter referred to him and has narrated sufficient facts to enable the court to decide whether the steps by which the conclusions were reached were correct. Smith v. Lloyd, 224 Mass*. 173. There was no error in refusing to require him to do more. Tuttle v. Corey, 245 Mass. 196, 203. No such inconsistencies appear in the report as to make a recommittal necessary. Volpe v. Sensatini, 249 Mass. 132.

All questions open for decision on these appeals have been considered and no reversible error has been found.

Decrees affirmed with costs.