Ross v. Burrage

Pierce, J.

The plaintiff, after rescript and before final decree, filed motions to amend his bill of complaint and to recommit the bill to the master for further findings of fact. The motions were denied, a final decree in accordance with the rescript was entered, and the plaintiff appealed to this court.

This was a suit in equity to set aside a contract between the plaintiff and defendant, whereby the defendant secured an option on the plaintiff’s interest in certain copper mining properties. The ground of relief on which the plaintiff relied was that in obtaining his interest from bim the defendant, in the manner specified *549 and particularized in the bill of complaint, was guilty of concealments and failures to disclose and misrepresentations of material and important facts, in breach of the duty of fidelity which the defendant owed the plaintiff as a co-adventurer. The material facts of this litigation are reported in Ross v. Burrage, 233 Mass. 439 , and need not now be restated.

The opinion states that the master found that “no false representations were made by the defendant to the plaintiff,” and that “the plaintiff makes no contention now on the issue of these false representations.” The opinion further decides that the relation between the parties was that of employer and employee, and not that of co-adventurers; and that the relation of the parties was not fiduciary in the sense that there was a duty as between them of disclosure. In relation to the facts set out in the motions to amend and recommit, the opinion goes no farther than to intimate that the agreement might be construed to contain a material misrepresentation of fact, if the words of that instrument should be interpreted to speak in the sense and with the force the plaintiff seeks to have ascribed to them; while it decides that the court will not determine the materiality of the alleged misrepresentation, or, assuming a misrepresentation of fact, the right of the plaintiff, if any, to relief in any form, in the absence of a finding that the plaintiff to his harm relied on that misrepresentation.

The report of the proceedings before the master shows that he did not determine as a fact that the words of the agreement were a misrepresentation, because he thought the question was one of law and not of fact, and because if it were a question of fact the particular and distinct implied representation, alleged to be false, was not charged in the bill as a representation made by the defendant upon which the plaintiff relied. The report further dis= closes much discussion relating to a possible motion to the court for leave to amend the bill to include the specific charge. So amended, it is plain the duty of the master would have required of him a finding of fact, or possibly of law and fact, of the question which the plaintiff now seeks to have determined upon re-committal, after the allowance of his proposed amendment. Such a motion was not made; the plaintiff apparently relying with absolute confidence of victory upon his position that the failure of *550 the defendant to disclose to the plaintiff, when the contract was signed, that the defendant had then sold, assigned and transferred and conveyed “all his right, title, and interest in and to said options,” was a breach of fiduciary duty, which the defendant owed the plaintiff, of such weight and importance as required a court of equity to rescind the agreement.

Should the plaintiff be permitted to prevail in his appeal, we perceive no reason why hereafter any plaintiff, who has failed in his action or defence through a mistaken reliance upon the supposed strength of his chosen weapons of offence or defence, should not with new weapons be permitted to attempt to defeat his adversary in new trials as often as both parties had ability and disposition to fight. That such is not the policy of the law is plain. A plaintiff or defendant who has once had a full opportunity to present his view of his case has had his day in court. Such is the situation of the plaintiff in the case at bar. It follows that the finding and order of the single justice disallowing the motions must stand, Noyes v. Noyes, 234 Mass. 397 , and the final decree be affirmed.

Ordered accordingly.