Murphy v. Furcolo

228 N.E.2d 735, 353 Mass. 745

Opinion

This bill was originally brought to impose a constructive trust upon, or to rescind the sale of, shares of Hancock Raceway, Inc. stock. Commonwealth v. Carson, 349 Mass. 430, contains the factual background underlying the bringing of this suit. The principal issue of the case as it reached us was the ownership of a bond purchased by one of the defendants with money allegedly obtained from the sale of the aforementioned shares. The trial judge in his report of the evidence and voluntary findings did not determine who owned the bond, which was not in issue before him on the pleadings, and it is not possible for us on the record as it has reached us to make a determination on this point. Since this is the principal issue in the case the decree must be reversed and the case remanded to the Superior Court for determination of this issue with leave to the parties to amend their pleadings. It may be desirable for the clerk of the Suffolk Superior Court for Civil Business, who has custody of the bond, to file an interpleader, and, subject to the discretion of the court, it may also be desirable that a second suit, Suffolk Superior Court No. 85,265 equity, brought by the plaintiff against the defendant Furcolo to recover the bond, be tried with this case.

So ordered.