Clark v. Story

Sheldon, J. The questions now raised relate only to the schooner Agnes V. Gleason and to the mortgage upon her. 1. The attempted foreclosure having been avoided as fraudulent, the defendants must be treated as assignees of the mortgage. Having been in possession and control of the vessel, they must be charged with the net amounts which they have received as her earnings, or which by the exercise of due diligence they ought to have received. White v. Brown, 2 Cush. 412. Mills v. Day, 206 Mass. 530. They have been charged only with what they actually received. Of this they have no right to complain. 2. They contend however that from these earnings there should be made certain deductions which have not been allowed to them. As to the first of these items, the sum of $308.41, for the outfit furnished to the crew of the vessel on her last trip, the defendants since the argument was made in this court have waived their exceptions. The second of these items is the sum of $160.67, alleged to have been paid to the captain. It is charged in the account produced by the defendants as “ commission on stock.” The defendant B. A. Smith testified on cross-examination that this was the “captain’s commission, percentage paid the captain, his wages for running the vessel.” But it already had appeared that the captain and crew were to have for their pay four-fifths of the value of the catch that should be made; and there is in the testimony no further explanation of this item. It was not shown on what sum the commission was reckoned, or that there was any agreement or any custom that this allowance should be given. We may surmise facts which would justify such an expenditure, or even make it necessary ; but we cannot discover either in the facts reported, or in the evidence, ground for more than a surmise. The master was unable to find on the evidence what this commission was. The court is in the same position. This item was properly disallowed. The master found that a fair compensation for the services of the defendant B. A. Smith would be $500, but ruled that noth [40] ing should be allowed to him. The plaintiff contends that this ruling was right because the foreclosure by which the defendants gained their title was fraudulent, and they ought not to be allowed to profit by their wrongdoing. But in the opinion of the majority of the court the avoidance of the foreclosure does away with all the effects of the fraud which has been found. It was conceded at the argument that the defendants as mortgagees were entitled to the possession of the vessel. It was their duty, so far as might be, to put her to a profitable use; and we already have seen that if they had not done so they would have been responsible for whatever profits should have been realized. Smith’s services have been valuable. The master has found that the earnings of the vessel have been unusually large, and her voyages very successful. The plaintiff now takes the benefit of the valuable services which have produced this advantageous result. Both upon principle and authority he should be charged with their fair value. Adams v. Brown, 7 Cush. 220. Grerrish v. Black, 104 Mass. 400. Waterman v. Curtis, 26 Conn. 241. The master properly refused to set off against the amount for which the defendants were found liable upon the accounting their independent demands for insurance premiums paid by them for the mortgagor. Some of these premiums were for insurance upon another vessel; none of them constituted any part of the mortgage debt, or were paid under any authority contained in the mortgage, or in the performance of any of its terms. They were wholly independent matters. Mayhew v. Martha's Vineyard National Bank, 203 Mass. 511, 515. 3. The master’s findings as to the value of the vessel were justified by the evidence before him. Certainly they were not plainly wrong. 4. Interest was properly computed in the decree which was entered by the single justice. It is unnecessary to consider the defendants’ exceptions in detail. All that have been argued are covered by what has been said. The decree appealed from must be modified so as to sustain the defendants’ thirteenth exception to the master’s report, and to reduce the amount found in favor of the plaintiff by the sum of $500, and so modified must be affirmed. So ordered.