Equity Pleading and Practice, Master: report, findings; Appeal. Gift. Equity Jurisdiction, Accounting, Allowance for expense.
Where a rule referring a suit in equity to a master directed him "to hear the parties and their evidence and report his findings . . . together with such facts and questions of law as either party may request," and the master reported certain evidence "only at the earnest request of the plaintiff, to avoid any possible need for a recommital of the report for further findings on this point," this court, upon appeal by the plaintiff from a final decree, stated that such practice was not approved as a precedent; but that, since the decision must be adverse to the plaintiff even if such evidence were considered, the grounds of substantive law, taking such evidence into consideration, were set forth. A master hearing a suit in equity for an accounting found in substance, as to $515, the proceeds of a called bond, which the plaintiff contended was received by the defendant for the plaintiff, a woman, that an entry of March 1 in the stub of a check book of the defendant's wife, who was the plaintiff's daughter, showed that that sum was received, not by the defendant, but by the plaintiff's daughter; and that the defendant was not obliged to account to the plaintiff therefor. The master, at the request of the plaintiff, reported as evidence an entry in the daughter's check book under date March 18 of a check to the defendant for $350 "For" the plaintiff and a card of the defendant showing that he turned that check together with a check of his own for $165.70 over to a broker for credit to an account in his name but solely for the plaintiff's benefit. As to such evidence the master stated that he did not allow it to control his finding that the defendant did not receive the proceeds of the bond and should not be held to account for it. Held, that the evidence fell short of shaking the express finding by the master that the defendant was not liable for such item, and that the master's finding must stand. As to another item in the account between the parties in the suit above described, the master reported in substance that the controversy followed a separation of the defendant from his wife, the plaintiff's daughter, which culminated in a divorce shortly before the inception of this suit; that in April, 1915, the plaintiff lent the defendant $2,300 to assist him in buying a home in which she thereafter lived with the defendant and his wife; that no payment ever had been made on account of the principal of this loan, but payments of interest at the rate of five per cent per annum were received by the plaintiff from the defendant until August 31, 1917; that at that time the plaintiff told the defendant that she did not feel that she was paying her proper share of the expenses as a member of the defendant's household and that he "might forget the $2,300 loan"; that since that time the plaintiff had neither received nor asked for any interest; that in 1925 that home was sold and from the proceeds of the sale $2,244 was paid on account of a mortgage of another house purchased in the name of the plaintiff's daughter, who was then the wife of the defendant; that the defendant later joined in a conveyance of this property to the plaintiff, who took title merely as a straw for her daughter and had no beneficial interest therein. Based on his findings, the master concluded that such loan was discharged by the plaintiff on August 31, 1917, "on which date she made a gift to the defendant of the remainder then due to her on account of said loan." Held, that (1) So far as the question was one of fact, the master's conclusion could not be pronounced wrong; (2) The generally accepted rule of law, that a gift of a chose in action not having such tangible body as to be chattel property, including a gift of a simple debt, cannot be made effective without a deed, the execution of an adequate release or transfer in writing or the performance of some other act placing the debt beyond the legal control of the creditor, was not applicable, since the events and conduct of the parties after 1917 placed the debt beyond the control of the plaintiff and vested it in the defendant; (3) The conclusion of the master was warranted both in fact and in law. At the argument before this court of the suit above described, the plaintiff moved that she be allowed as against the defendant the actual expenses incurred by her in the accounting in the case on the ground that the defendant occupied a fiduciary relation to her, that he owed to her the duty to account, that he failed in this duty although given ample opportunity, and that the plaintiff was compelled at her own expense to make a lengthy investigation to state the account. It did not appear from the record that such question was raised in the trial court at the time the final decree was entered. Held, that (1) Such contention should have been presented in the trial court before the entry of a final decree and a full finding of relevant facts requested if it was desired to secure review of the decision then made; (2) The motion was denied.