Opinion
No. 3365.
Decided March 2, 1943.
BILL IN EQUITY, to impress a constructive trust upon a sum of $3,000, in the hands of the defendant. The bill alleged that prior to April 14, 1941, the plaintiffs and the defendant entered into an oral partnership agreement for the purchase of a theatre in Somersworth; that negotiations for the purchase were conducted, in part, by the defendant, ostensibly on behalf of the plaintiffs, but in reality as the agent of the owner; that on April 14, 1941, the defendant informed the plaintiffs that he no longer desired to be a party to the purchase as a partner; that the plaintiffs thereafter, upon April 16, 1941, purchased the theatre from the owner for the sum of $28,000; that the defendant received the sum of $3,000 from the owner as a secret profit for negotiating the sale in violation of his equitable obligations to the plaintiffs.
Trial by the court (Lorimer, J.) who found the facts, entered a decree for the defendant and allowed the plaintiffs' bill of exceptions which was in part as follows: "Now come the petitioners in the above entitled action and except to the following decree issued on the facts found by the court: `Decree for the defendant with costs. The court is not persuaded on the evidence that any partnership agreement existed between petitioners and the defendant to purchase the theatre as partners.'"
McCabe Fisher (Mr. Fisher orally), for the plaintiffs.
Keefe Keefe (Mr. F. Clyde Keefe orally), for the defendant.
The trial court found in effect that the plaintiffs had failed to sustain the burden of persuasion which rested upon them with reference to the essential allegations of the bill. The decree for the defendant followed as a necessary consequence of this finding. Under these circumstances, plaintiffs' exception to the action of the court raises no question of law. Analogous cases are Association Canado-Americaine v. Marquis, 90 N.H. 125; Bacon v. Thompson, 87 N.H. 270; Erisman Company v. Company, 87 N.H. 483.
Exception overruled.