Case Summary: Eugene C. Fenton v. Nicholas Malfas (Supreme Judicial Court of Massachusetts, May 24, 1934)

Factual and Procedural Background

This is a suit in equity filed March 20, 1933, by the plaintiffs to enforce building restrictions and to compel removal of a refreshment stand placed on land of the defendant. The building restriction applicable to the defendant's lot provided that no building should be erected thereon except a one-family dwelling and a private garage, with specified setbacks from Northampton Street and Dillon Avenue. The defendant did not dispute the existence or validity of the restrictions nor contend that his building was permitted under them.

Material factual events described in the opinion: the defendant placed a small refreshment stand on the lot in 1928 which was entirely removed in 1932; late in 1932 he erected a more elaborate refreshment stand on the same site. Both stands were portable (built elsewhere and moved to the lot). The plaintiffs protested the erection of each stand. There was evidence that the defendant told the plaintiffs the business was temporary and that eventually he would build a house on the lot.

The suit was heard in the Superior Court by Judge Dillon (the evidence was reported). The trial judge indorsed on the bill that the allegations of the bill were true, that the defendant had violated the deed restrictions, and that the plaintiffs were not guilty of laches nor had they passively acquiesced. A final decree was entered for the plaintiffs. The defendant appealed from the decree and also excepted to and appealed from the judge's refusal to find facts beyond the indorsement on the bill. Hearing in the Supreme Judicial Court occurred September 21, 1933; decision rendered May 24, 1934.

Legal Issues Presented

Whether the plaintiffs' delay or conduct amounted to laches or acquiescence that would bar their equitable suit to enforce the building restrictions.
Whether the trial judge adequately complied with a request for a report of material facts under G.L. (Ter. Ed.) c. 214, § 23 (as raised by the defendant), and whether any deficiency in that compliance prejudiced the defendant on appeal.

Arguments of the Parties

Defendant's (Appellant's) Arguments

The defendant contended that the plaintiffs' suit was barred by laches and by their acquiescence in the defendant's constructions on the lot.
The defendant requested a report of material facts under G.L. (Ter. Ed.) c. 214, § 23 and relied on the trial judge's response to that request (the judge stated his indorsement on the bill contained a recital of material facts and that he had nothing to add).

Plaintiffs' (Respondents') Arguments

The plaintiffs maintained that they had timely objected to the violation of the restrictions and were not guilty of laches or of passive acquiescence.
Implicitly, the plaintiffs relied on the circumstances of the portable, transient nature of the stands and their timely protests as reasons why their delay (if any) did not amount to laches.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Snow v. Boston Blank Book Manuf. Co., 153 Mass. 456	Cited in connection with a request for report of material facts under G.L. c. 214, § 23.	The court stated that whether the trial judge's recital fully complied need not be considered because the defendant was not prejudiced — the entire evidence was reported.
Building Inspector of Salem v. Gauthier, 259 Mass. 615	Cited regarding the report of material facts and compliance with the statute.	Used with Snow to justify not considering the sufficiency of the judge's report because the record contained the full evidence and the defendant suffered no harm.
Lindsey v. Bird, 193 Mass. 200, 201	Rule that a decision by the trial judge upon oral testimony will not be reversed unless plainly wrong.	The court applied this standard but also noted it would examine the reported evidence and decide the case on its own judgment; nonetheless, it would not overturn the trial judge's factual finding unless plainly wrong.
Calkins v. Wire Hardware Co., 267 Mass. 52, 69	Statement that "Laches is not mere delay but delay that works disadvantage to another."	The court cited this principle in concluding that the plaintiffs' delay did not amount to laches because it did not work disadvantage to the defendant under the circumstances.
Carter v. Sullivan, 281 Mass. 217, 227	Reinforces the definition and application of laches as requiring disadvantage to another.	Used alongside Calkins to support the court's assessment that the plaintiffs' conduct did not constitute laches.
Stewart v. Finkelstone, 206 Mass. 28	Cited in support of the court's conclusion that the decree was correct.	The court cited this case as authority consistent with affirming the decree for the plaintiffs.

Court's Reasoning and Analysis

The court began by stating the posture: the trial judge had indorsed on the bill findings that the bill's allegations were true, that the defendant violated the deed restrictions, and that the plaintiffs were not guilty of laches or passive acquiescence. A final decree was entered for the plaintiffs and the defendant appealed. The entire evidence was reported to this court.

On the procedural point about the defendant's request for a report of material facts under G.L. c. 214, § 23, the trial judge had indicated his indorsement on the bill was a recital of material facts and he had nothing to add. The Supreme Judicial Court observed that whether this was full compliance with the statute need not be decided because the defendant was not prejudiced: the full evidence was in the record. Citing Snow and Building Inspector of Salem v. Gauthier, the court explained that because the entire evidence was reported, the defendant suffered no harm from any alleged inadequacy of the judge's written recital.

With the full evidence before it, the court reviewed the factual issue whether the plaintiffs were guilty of laches or had acquiesced. Applying the standard that findings based on oral testimony will not be overturned unless plainly wrong (Lindsey v. Bird), the court determined that the trial judge's finding that there was no laches or acquiescence was not plainly wrong. The court relied on these facts recited in the opinion: (1) a small stand was erected in 1928 and removed in 1932; (2) a more elaborate stand was erected late in 1932; (3) both stands were portable and moved to the lot after being built elsewhere; (4) the plaintiffs protested the erection of each stand; (5) the defendant told the plaintiffs his business was temporary and that he intended to build a house later.

The court explained that mere delay is insufficient to establish laches: laches requires delay that works disadvantage to another (citing Calkins and Carter). The court found that the period of time involved was not long, that the defendant had not been misled into acting to his detriment by any supposed delay, and that the transient nature of the portable stands was a material factor mitigating against a finding of laches. The plaintiffs had given seasonable notice of objection and had not permitted expensive permanent structures to be erected. The court also noted that the defendant's words and conduct tended to invite the plaintiffs to wait. Based on these factual considerations and applicable principles, the court concluded the trial judge's factual finding was correct.

Holding and Implications

Decree affirmed with costs.

Holding: The Supreme Judicial Court affirmed the Superior Court's decree in favor of the plaintiffs, agreeing that the plaintiffs were not guilty of laches or passive acquiescence and that the defendant had violated the building restrictions.

Implications: The direct effect is that the plaintiffs' decree enforcing the building restrictions (seeking removal of the refreshment stand) was upheld and costs were awarded to the plaintiffs. The opinion does not announce a broader new rule of law; it applies existing precedents concerning appellate review of reported evidence, the statutory request for a report of material facts, and the doctrine of laches to the facts of this case.

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EUGENE C. FENTON another vs. NICHOLAS MALFAS.

Equity Jurisdiction, Laches. Equitable Restriction. Equity Pleading and Practice, Findings by judge, Appeal.

If, upon an appeal from a final decree in a suit in equity, the entire evidence is reported, the appellant is not harmed by a failure of the trial judge adequately to comply with a request by him for a report of material facts under G.L. (Ter. Ed.) c. 214, § 23. Laches which will bar a suit in equity is not mere delay but delay that works disadvantage to the defendant. In a suit in equity to enjoin the maintenance by the defendant on his land of a refreshment stand in violation of a building restriction, the defendant contended that the suit was barred because the plaintiff had been guilty of laches and had acquiesced in the defendant's conduct. There was evidence that a small stand had been placed on the land by the defendant in 1928 and had been removed in 1932; that a more elaborate stand was erected late in 1932; that both stands were portable; that the plaintiff in each instance objected to the placing of the stand on the defendant's land; and that the defendant assured the plaintiff that his business was only temporary and that later he would build a nice house on the lot. The suit was begun in March, 1933. The judge found that there was no laches nor acquiescence on the part of the plaintiff which would bar the suit. The evidence was reported. Held, that, on the evidence, the finding not only was not plainly wrong, but was right.

RUGG, C.J.

This is a suit in equity to enforce compliance with building restrictions by compelling the removal of a refreshment stand from land of the defendant. The trial judge indorsed on the bill that after hearing he found and ruled that "the allegations in the within bill of complaint are true; that the defendant has violated the restrictions in his deed contained; that the plaintiffs are not guilty of laches and there was no unreasonable delay on their part in bringing the within bill nor anything showing either actual consent or passive acquiescence on their part." A decree was entered in favor of the plaintiffs. The defendant appealed. The evidence is reported in full. The defendant does not now dispute the existence or validity of the building restrictions, nor contend that his building was permitted under them. He does not question that owners of the estates of the plaintiffs are entitled to enforce those restrictions. The only defences argued on the merits are laches by the plaintiffs and acquiescence by them in the constructions of the defendant.

The defendant filed a request for report of the material facts. G.L. (Ter. Ed.) c. 214, § 23. On this request the trial judge wrote in substance that his statement indorsed on the bill of complaint and quoted above contained a recital of material facts and he had nothing to add. Whether this was a full compliance with the statute in respect to the defence of laches need not be considered because the defendant has not put himself in a position to question its sufficiency. Snow v. Boston Blank Book Manuf. Co. 153 Mass. 456. Building Inspector of Salem v. Gauthier, 259 Mass. 615. The defendant has suffered no harm because the entire evidence is in the record. In these circumstances this court examines the evidence and decides the case on its own judgment, but a decision by the trial judge upon oral testimony will not be reversed unless plainly wrong. Lindsey v. Bird, 193 Mass. 200, 201.

Whether there was laches or acquiescence on the part of the plaintiffs was a question of fact. There is ample evidence that there was no laches or acquiescence on the part of the plaintiffs with respect to the violation by the defendant of the building restrictions. The finding of the trial judge on this point was not plainly wrong but was, in our opinion, right. The first refreshment stand of the defendant was a small affair built in 1928, and entirely removed in 1932. Late in 1932 a more elaborate refreshment stand was erected on the same site. The plaintiffs protested at the erection of each. The present suit was brought in March, 1933. There was evidence that the defendant assured them that his business was only temporary and that later he would build a nice house on the lot. These stands both were portable, built at some place off the lot and moved to it. Failure of the plaintiffs to institute proceedings more promptly did not constitute laches in all the circumstances. The period of time was not long. The defendant was not misled by failure of the plaintiffs to act more expeditiously. The transient nature of the stands was a factor to be considered in determining whether there was undue delay on the part of the plaintiffs. "Laches is not mere delay but delay that works disadvantage to another." Calkins v. Wire Hardware Co. 267 Mass. 52, 69. Carter v. Sullivan, 281 Mass. 217, 227. The plaintiffs did not sit idly by and permit expensive structures to be constructed. They gave seasonable notice of objection to violation of the restrictions by the defendant. The words and conduct of the defendant to some extent tended to invite the plaintiffs to wait. It is not necessary to recite or to summarize the evidence further. The decree was right. Stewart v. Finkelstone, 206 Mass. 28.

Decree affirmed with costs.

FENTON v. MALFAS