Rolikatis v. Lovett

100 N.E. 748, 213 Mass. 545, 1913 Mass. LEXIS 1030

• Court: Massachusetts Supreme Judicial Court
• Decided: February 3, 1913
• Status: Published

Opinion

Bbaley, J.

The evidence not having been reported, the master’s findings of fact are conclusive, and it follows that, when the defendant, an attorney at law, acquired the property which is the subject of this suit, the fiduciary relation of attorney and client existed between the parties. It further appears that his attendance at the sale was upon an understanding and arrangement that he should safeguard the plaintiff’s interests, and bid off the property for her, and the master unhesitatingly finds that instead he took advantage of the opportunity to obtain the title for himself. A clear breach of the trust and confidence which she had reposed in him is shown by the report. The extent and nature of this relation and the scrupulous care which should be exercised by the court, when the validity of transactions where the attorney acquires the property of his client, or property which he has engaged to procure for his client, are under review, have been so recently pointed out that further discussion is unnecessary. Hill v. Hall, 191 Mass. 253. Kelly v. Allin, 212 Mass. 327. Manheim v. Woods, ante, 537.

It is true that the plaintiff, although prepared to advance the purchase price, did not do so, and consequently there is no resulting trust. Bourke v. Callanan, 160 Mass. 195. But, whenever an attorney at law, who is retained or employed to purchase, buys the property indirectly on his own account without the client’s assent, as in the case at bar, a constructive trust arises, and he will be held to be a trustee at the election of his client, who is entitled to the benefit of the transaction. Hawkes v. Lackey, 207 Mass. 424, where the cases are collected. Manheim v. Woods, ante, 537.

The defense of loches, not having been pleaded, is not open. Stewart v. Joyce, 201 Mass. 301. But, if pleaded, we should hesitate long before holding that the delay of less than two years, where the plaintiff is shown to have been of foreign birth and unacquainted with our language, and during the time had implicit faith in the defendant’s singleness of purpose and believed from his conduct and statements that he had acted in her behalf until he refused to recognize her rights and claimed the property as his own, when thereupon she brought suit, should bar relief in a court <of conscience. Sawyer v. Cook, 188 Mass. 163.

Nor did the master or the judge err in refusing to allow the defendant interest on the purchase price. It is to be presumed that he knew the law, and, having acted to the disadvantage of the plaintiff, he should not be permitted to receive compensation in the form of interest. Morse v. Hill, 136 Mass. 60. Hayes v. Hall, 188 Mass. 510. Milwaukee & Minnesota Railroad v. Soutter, 13 Wall. 517.

The exception to the admission of evidence, not having been argued, calls for no comment, and, finding no error of law in the refusals to rule as requested or in the master’s report, the exceptions are overruled.

So ordered.