Mackintosh v. Houghton

Braley, J. The denial of the plaintiff’s motion to recommit the master’s report shows no reversible error. Ball v. Allen, 216 Mass. 469. Smith v. Lloyd, 224 Mass. 173. The evidence not having been reported the plaintiff’s exceptions founded on the master’s findings or on his refusal to make findings as requested cannot be reviewed. Warfield v. Adams, 215 Mass. 506. The exceptions to the failure of the master to make rulings of law as requested also are of no avail. The report makes no reference to such requests for rulings or any action thereon. Cook v. Scheffreen, 215 Mass. 444. Ball v. Allen, 216 Mass. 469. The bill asks for an accounting and that certain moneys received by the defendant be charged with a trust for the plaintiff’s benefit. The material facts as found by the master are, “The [288] defendant’s intestate, Leander A. Getchell, was a small rent collector and from about October 1905 until September 1914, when he went to the City Hospital, had collected rents in behalf of the plaintiff from tenants in the house numbered 5 on Jefferson Street in Boston. The plaintiff claimed that at the time of his death ... on January 3, 1915, . . . Getchell had collected moneys which he had not turned over to the plaintiff; but the amount . . . except what was represented by three checks hereafter referred to and two payments collected from a tenant called Segal, one for $10 and one for $5, as shown on . . . Getchell’s cash book, were not proved. While . . . Getchell was in the hospital, he employed E. J. Hickey, Jr., ... to make certain collections of rent for him. . . . Hickey who was called as a witness by the plaintiff testified that he knew . . . Getchell and had been employed by him as a friend in August and September, 1914, to collect rents for him, but had received no compensation for such collection. On August 12, 1914, he collected of one of the plaintiff’s tenants, Segal, $18, and of another named Powers, $15 and deposited the $33 so collected in the account of E. J. Hickey & Co. in the International Trust Co. Shortly thereafter he drew a check for $33 to L. A. Getchell . . . and sent the same to . . . Getchell. That on August 29, 1914, he collected $19.04 from the said Segal and Powers, deposited the amount so collected in the said account in the International Trust Co. and on the same day drew a check to . . . Getchell signed ‘E. J. Hickey & Co.’ for $19.04. That on September 11, 1914, he collected from said Segal at house No. 5 Jefferson Street, $15 and $45 from a tenant called Cohen. He deposited the $60 so collected in the said account in the International Trust Co. and immediately thereafter sent to Getchell a check drawn payable to his order ... for $60. These checks were not endorsed by Getchell, but were afterwards offered in evidence and were proved to have been endorsed and deposited some months after the death of the said Getchell by his administratrix with other moneys belonging to said Getchell, and that no separation was made in any way of these checks so deposited.” Whatever inferences of fact, if any, which might have been drawn favorable to the plaintiff’s contention that a trust had been established are disposed of by the master’s final statement that, “Upon the evidence in this case [289] I find and report that it was not proved that these moneys or any of them should be charged with a trust in the plaintiff’s favor.” Martin v. Barnes, 214 Mass. 29. But the statute of limitations has run since the filing of the bill and the plaintiff should not be left remediless. It is alleged and the report shows that the intestate acted as the plaintiff’s agent in the collection of rent from tenants “in the house numbered 5 on Jefferson Street” owned by the plaintiff as trustee under the will of Sarah B. Akerman, and that at the date of his death he had in his possession payable to his order checks aggregating $112.04, rents collected from tenants as stated by the master, and substantially admitted in the defendant’s answer. It was the plaintiff’s money which he received in the form of checks, and at his death he was accountable for this amount, the same as if the checks had beengiven payable to his order by the respective tenants. The plaintiff’s right to an accounting cannot be cut off because after his death the checks were collected by his administratrix even if as averred in the answer she treated the proceeds as part of the assets of the intestate’s estate. Farrelly v. Ladd, 10 Allen, 127. Childs v. Jordan, 106 Mass. 321. Cole v. Bates, 186 Mass. 584, 586. Flye v. Hall, 224 Mass. 528, 529. Donovan v. Walsh, 238 Mass. 356. The decree dismissing the bill is therefore reversed, and a decree with costs is to be entered awarding the plaintiff $112.04 with interest from the date of the filing of the bill. Stratton v. Hernon, 154 Mass. 310, 313. Ordered accordingly.