Home FRANCIS E. GORDON & another vs. JOHN A. W. ANDERSON & another.

348 Mass. 787

February 1, 1965

The defendants appeal from a final decree ordering them to convey to the plaintiffs a lot and the house thereon subject to certain adjustments reflecting the facts as found in a master's report. No appeals were taken by the defendants from an interlocutory decree overruling the defendants' exceptions to and confirming the report or from the denial of a motion to strike out portions of the master's report and to recommit it. We are thus concerned only with whether the findings of the master are mutually inconsistent or plainly wrong, Flynn v. Korsack, 343 Mass. 15 , 17, and whether the decree is within the scope of the pleadings and has support in the facts found. Regan v. Tierney, 306 Mass. 168 , 170. The record discloses no error in these respects. Argument by the defendants that there was no writing relative to the sale of the house and lot as required by G. L. c. 259, Section 1, fails in that the plaintiffs gave the defendants a down payment on the premises, made substantial improvements to it after moving in, and sold their prior residence, all of which constituted sufficient part performance to estop the defendants from effectively pleading the statute. Glass v. Hulbert, 102 Mass. 24 , 43. Fisher v. MacDonald, 332 Mass. 727 , 729.

Final decree affirmed with costs of appeal.

Home FRANCES J. VOGELAAR, administratrix, vs. H. L. ROBBINS & CO. INC. & another.

348 Mass. 787

February 1, 1965

One Roukema's administratrix seeks to establish a trust and obtain an accounting in respect of dealings between (a) Roukema and (b) the defendants, a licensed stockbroker and a securities firm acting as broker and on occasion as dealer. The trial judge, denying further leave to amend, sustained a demurrer to an amended bill which in very general terms alleged, inter alia, (1) that the defendants

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were aware that Roukema knew little about the securities business, had been under intermittent psychiatric treatment, and completely relied upon them; (2) that he had transferred funds to the defendants "to invest and reinvest . . . in good and safe securities for him"; (3) that the defendants controlled the funds "subject to their duty to hold same in trust" to invest them for Roukema's benefit, and traded the fund with undue frequency for their own benefit rather than Roukema's interest; and (4) that, without disclosing "their own secret interest" they invested the funds (see Hall v. Paine, 224 Mass. 62 , 73) in securities owned by them and themselves bought securities formerly sold to Roukema's account. The allegations suggest a situation in some respects similar to that found by the master in Birch v. Arnold & Sears, Inc. 288 Mass. 125 , 136-138, where the bill was not tested by demurrer. The allegations, however, do not set out with precision the facts concerning the defendants' undertaking or the circumstances of particular transactions and arrangements. They fall short of indicating a fiduciary (as distinguished from a business) relationship or that the defendants made a contractual undertaking to direct the investment program without control by Roukema. See Brown v. Corey, 191 Mass. 189 , 191; Snow v. Merchants Natl. Bank, 309 Mass. 354 , 360-361; Plumer v. Luce, 310 Mass. 789 , 793, 796, 799; Yamins v. Zeitz, 322 Mass. 268 , 272-273. See also Furber v. Dane, 204 Mass. 412 , 415-417. Cf. Akin v. Warner, 318 Mass. 669 , 674; Berenson v. Nirenstein, 326 Mass. 285 ; Lesh, Federal Regulation of Over-the-Counter Brokers and Dealers in Securities, 59 Harv. L. Rev. 1237, 1248, 1272-1273. The demurrer was correctly sustained, but because it is not clear that the plaintiff cannot state a case good against demurrer, the interlocutory decree is to be modified, and the final decree is to be reversed, solely to permit the Superior Court in its discretion to allow further amendment of the bill. If no application for further amendment is filed within sixty days after the date of rescript, or if an amendment is not allowed on an application seasonably filed, the bill is to be dismissed. See Abrain v. Pereira, 336 Mass. 460 , 463.