Home VIRGIL J. AIELLO vs. FRANCIS FOX.

7 Mass. App. Ct. 854

February 5, 1979

The plaintiff in this action for declaratory relief sought to recover the amount of a deposit paid to a corporation pursuant to a purchase and sale agreement for a parcel of real estate, said deposit having allegedly been used by the corporation (now insolvent) to pay certain other creditors. Judgment was entered for the plaintiff against the corporation. The plaintiff also sought a declaration that the defendant, treasurer of the corporation, be held individually liable for the amount of the deposit on alternative theories of negligence and conversion. We affirm the entry of judgment for the defendant, based upon the judge's findings that the defendant at all material times acted in his capacity as treasurer of the corporation and in its behalf rather than in his own behalf. The judge found no evidence of an escrow or other written agreement between the parties which would indicate any duty owed by the defendant individually to the plaintiff. The judge was correct in concluding that, on the facts found, the defendant could not be held liable to the plaintiff on either of the theories propounded by him. See Refrigeration Discount Corp. v. Catino, 330 Mass. 230 , 235-236 (1953). Cf. Crohon & Roden Co. v. Rudnick, 232 Mass. 555 , 557 (1919). Nor do we find any factual support for the plaintiff's contention that a trust relationship was established between the plaintiff and the defendant which would entitle the plaintiff to an accounting from the defendant for the amount of the deposit.

Judgment affirmed.