Braman v. Foss

Braley, J. The case having been referred to a master, the plaintiff alleged several exceptions to the report, of which only those relating to the six hundred shares of Reading stock having been argued, the others may be considered as waived. It appears, upon evidence not reported, that the master determined — 410 — that the defendant was entitled not only to the shares, but to the dividends which had accrued, and beén paid to the plaintiff. The argument is, that the finding, being beyond the scope of the bill, is not justified by the pleadings. If the prayers for relief were limited to a cancellation of the agreement which it was alleged had been fraudulently procured and a reconveyance of the land and an assignment to the plaintiff of an outstanding mortgage and note held by the defendant, with an accounting to determine what amount the plaintiff owed the defendant, the fourth paragraph of the bill alleges that the value of the shares in dispute was included in the gross amount due from the plaintiff under the instrument. But after reference to the master and a partial hearing before him, the plaintiff amended his bill by adding another paragraph containing allegations as to other transactions, and a general prayer, in which he asked for an accounting of all transactions between them, and that his rights be determined in all claims of whatsoever nature he had against the defendant. It would seem sufficiently plain, that the, title to the shares had been put in issue by the pleadings, when the defendant in his answer to the original bill avers, that by the terms of the agreement the indebtedness is in addition to the obligation of the plaintiff to deliver the shares. If any doubt however remained, it is removed by the statements in the report, that under a written stipulation of the parties but five matters were left in controversy under the bill as amended, one of which was, whether the plaintiff was bound to deliver the shares to the defendant. By the order of reference, unless • waived at the hearing, the master was required to pass upon the issues presented by the pleadings, and until the right of property in the shares had been determined, the account could not be stated. The interlocutory decree overruling the plaintiff’s exceptions to the report must be affirmed. It is further contended, that so much of the final decree as declared that it is the duty of the plaintiff to deliver the stock to the defendant and pay over the dividends received, is erroneous. The plaintiff does not controvert the general principle, that where a court of equity obtains jurisdiction of a controversy on any ground, it will, to avoid multiplicity of suits, administer complete relief by the adjustment of all equities connected with — 411 — the subject of the suit, which may be authorized by the pleadings. Richards v. Todd, 127 Mass. 167. Rathbone v. Warren, 10 Johns. 587. If, however, a defendant desires affirmative relief, he must resort to a cross bill. Andrews v. Gilman, 122 Mass. 471. But in suits to settle the affairs of a partnership, or for the foreclosure or redemption of a mortgage where a statement of accounts is involved, or in a bill for an accounting, both parties are actors, and a defendant may have a decree in his favor without the aid of a cross bill. Goldthwait v. Day, 149 Mass. 185. Worthington v. Waring, 157 Mass. 421,429. Done’s case, 1 P. Wms. 263. Glenn v. Hebb, 17 Md. 260. Wyatt v. Sweet, 48 Mich. 539. Jenks v. Smith, 14 R. I. 634. Raymond v. Came, 45 N. H. 201. The defendant’s claim to the stock is not independent of the bill, for by putting the title in issue the plaintiff admits the defendant’s right to have the ownership settled. The master explicitly finds, that the transactions, out of which the shares in issue remained, consisted not only of occasional balances in money the defendant owed the plaintiff, but of stocks bought for the defendant and owned by him, although standing in 'the name of the plaintiff, the value of which largely exceeded the pecuniary indebtedness. The report further states, that having pledged these stocks to secure his personal loans, the plaintiff being unable to deliver them, the defendant advanced the money for redemption after receiving as security a mortgage on certain real estate of the plaintiff. If with the defendant’s consent the stock had been sold and the proceeds received by the plaintiff, the balance due would have been the avails of the sale for which the defendant would have been entitled to a decree. Goldthwait v. Day, 149 Mass. 185. If an accounting has been held to mean the acknowledgment of an existing debt, from which the law implies a promise to pay sufficient to maintain an action, yet where the dealings between the parties comprise the purchase of stocks which are to be accounted for, as well as the receipt of money, it also includes, if the balance is found against him, not only payment of the money by the accountant, but the delivery of the specific property in his possession or control. Buxton v. Edwards, 134 Mass. 567, 578. Doucette v. Baldwin, 194 Mass. 131. The mutual account between the parties by their method of dealing — 412 — having consisted of items of stock as well as of money, there is no sufficient reason why a different course should be pursued in a settlement of their differences when presented to the court. The demands due from one to the other were none the less mutual, whether expressed in shares of stocks or units of money. Whitwell v. Willard, 1 Met. 216-218. It is not the adjustment of an unliquidated claim based on their value with which the plaintiff is charged, but the specific shares in which the defendant had an unqualified ownership. Instead of a sum of money to be paid in settlement, the accounting results, after a balance has been struck, in shares of stock with the accrued dividends, due to the defendant upon closing the account. The final decree, therefore, after establishing the legal title might have granted affirmative relief by ordering the plaintiff to make delivery of the stock, and to pay over the dividends to the defendant, which would have avoided further litigation. Laeber v. Langhor, 45 Md. 477. But the defendant has not appealed, and the final decree having been in conformity with the pleadings and master’s report, is affirmed. Ordered accordingly.