J.A Sullivan Corp. v. Commonwealth, 397 Mass. 789, 793-94, 494 N.E.2d 374 (1986). Accord Salamon v. Terra, 394 Mass. at 859, 477 N.E.2d 1029 (courts will imply a contract to avoid unjust enrichment); Schmid v. National Bank of Greece, S.A., 622 F. Supp. 704, 713 (D.Mass. 1985), aff'd 802 F.2d 439 (1st Cir. 1986). Where services are rendered by one party and voluntarily accepted by another, the presumption that there is an expectation of payment therefor, as well as an implied promise of payment for the reasonable worth of those services, may be rebutted by a showing of a strong self-interest in the outcome of the transaction by the party furnishing those services.
In order to succeed on its negligence claim, Lowel-Light must show (1) the Bank owed a legal duty of care to Lowel-Light; (2) the Bank breached that duty; (3) proximate or legal cause; and (4) actual damage or injury. See W. Prosser and W. Keeton, The Law of Torts § 30 (5th ed. 1985). First, Lowel-Light must establish that the Bank owed Lowel-Light a duty of care. Schmid v. National Bank of Greece, S.A., 622 F. Supp. 704, 712 (D.Mass. 1985), aff'd, 802 F.2d 439 (1st Cir. 1986) (citing Brown v. Kendall, 60 Mass. 292). Lowel-Light asserts that the Bank owed it two legal duties: (1) a duty reasonably to respond to the writ of execution served upon the Bank, and (2) a duty to act pursuant to the Court Order governing the disbursement of funds in the Escrow Account. Lowel-Light argues that the writ of execution served upon the Bank effected a valid lien on the Escrow Account and imposed a duty on the Bank to avoid disbursing funds from the Escrow Account either in violation of the lien or in violation of the Court Order mandating the creation of the Escrow Account. The FDIC contends that the writ used by Lowel-Light was ineffective because it failed to file a bond.
See Two Attorneys, 421 Mass. at 626-27 (citing Maganas v. Northroup, 663 P.2d 565 (Ariz. 1983) (duty to disclose known fraud); Collins v. Heitman, 284 S.W.2d 628 (Ark. 1955) (duty not to engage in self-dealing); Kitchen Krafters, Inc. v. Eastside Bank of Mont., 789 P.2d 567 (Mont. 1990) (duty to disclose material facts relevant to escrow), overruled on other grounds by Busta v. Columbus Hosp. Corp., 916 P.2d 122 (Mont. 1996); American State Bank v. Adkins, 458 N.W.2d 807 (S.D. 1990) (duty to avoid self-dealing and conflicts of interest)). But cf. Schmid v. National Bank of Greece, 622 F. Supp. 704, 710 (D. Mass. 1985) ("The escrow agreement or instructions constitute the full measure of the obligation assumed by the escrow holder and owing to the parties."), aff'd, 802 F.2d 439 (1st Cir. 1986) (tbl.). Despite plaintiffs' contrary suggestion, SEC Rule 10b-9 does not warrant the importation into the escrow agreement of a generalized duty to ensure that the offering as a whole complied with the securities laws.
(3) Courts may also use the word "waiver" as a way of insisting that an individual forego protection which he says that he does not wish to give up but which he has agreed to give up in the past. See, e.g., Schmid v. National Bank of Greece, 622 F. Supp. 704, 714-15 (D.Mass. 1985) (enforcing contractual release of right to sue other party), aff'd, 802 F.2d 439 (1st Cir. 1986); Anselmo v. Manufacturers Life Insurance Co., 595 F. Supp. 541, 549-51 (W.D.Mo. 1984) (enforcing contractual release of right to sue, and encouraging settlements incorporating such releases), aff'd, 771 F.2d 417 (8th Cir. 1985); Wilhelm v. Baxter, 436 F. Supp. 1322, 1326-27 (S.D.Ill. 1977) (finding purchase of liability insurance to waive local government's immunity from suit). (4) Finally, courts sometimes insist that an individual forego protection that he does not wish to give up, in order to avoid unfairness to others, such as adversaries in litigation who might suffer harm were a factfinder to be misled, say, by a partial disclosure of relevant information.
"Conversion requires the wrongful exercise of dominion over personality, including money, to which a plaintiff has an immediate right of possession." Schmid v. National Bank of Greece, S.A., 622 F. Supp. 704, 713 (D.Mass. 1985), aff'r, 802 F.2d 439 (1st Cir. 1986). Defendant urges that we accept the majority rule that limits conversion actions for money to those instances where the funds converted are held in a separate identifiable account.
But "[c]onversion requires the wrongful exercise of dominion over personalty, including money, to which a plaintiff has an immediate right of possession." Schmid v. The National Bank of Greece, 622 F.Supp. 704, 713 (D.Mass.1985) (citing Morrin v. Manning, 205 Mass. 205, 91 N.E. 308 (1910), and Marshall Vessels, Inc. v. Wright, 331 Mass. 487, 120 N.E.2d 286 (1954)) (emphasis added) ; see also Cauble v. Mabon Nugent & Co., 594 F.Supp. 985, 995 (S.D.N.Y.) (conversion occurs when one person interferes with another's superior possessory rights in property). The burden rests with the plaintiff of proving that at the time of the alleged conversion it had a right to immediate possession of the claimed property.
"The escrow agreement or instructions constitute the full measure of the obligation assumed by the escrow holder and owing to the parties." Schmid v. Nat'l Bank of Greece, S.A., 622 F.Supp. 704, 710 (D. Mass. 1985) (dismissing a negligence claim because the agent of the depository complied with disbursement terms of the escrow agreement). The Plaintiffs argue that New Century had a duty not to release the $200,000 from the Escrow Account unless the insurance binder was received and the $2 million loan closed.
604 Columbus Avenue Realty Trust v. Capitol Bank and Trust Co. (In re 604 Columbus Avenue Realty Trust), 119 B.R. 350, 370 (Bankr.D.Mass. 1990) aff'd in part vacated in part, Capitol Bank and Trust Co. v. 604 Columbus Avenue Realty Trust (In re 604 Columbus Avenue Realty Trust), 968 F.2d 1332 (1st Cir. 1992); see also Schmid v. Nat'l Bank of Greece, S.A., 622 F. Supp. 704, 713 (D.Mass. 1985) aff'd, 802 F.2d 439 (1st Cir. 1986). "In order to recover for conversion, [a] plaintiff[ ] I must show that at the time of the alleged conversion [it] had either actual possession or the right to immediate possession or control of the property in question."
Conversion is the exercise of dominion or control over personalty, including money, to which the plaintiff has an immediate right of possession. Schmid v. National Bank of Greece, S.A., 622 F. Supp. 704, 713 (D.Mass. 1985) (applying Massachusetts law); Third National Bank of Hampden County v. Continental Insurance Company, 388 Mass. 240, 244, 446 N.E.2d 380 (1983). No demand and refusal are necessary where the wrongful claim of dominion or control is manifested openly or is self-evident from the nature of the act asserting control.
As the Trustee correctly notes, a prima facie case of conversion requires a showing of "the wrongful exercise of dominion over personalty, including money, to which a plaintiff has immediate right to possession." Schmid v. National Bank of Greece, S.A., 622 F. Supp. 704, 713 (D.Mass. 1985), aff'd, 802 F.2d 439 (1st Cir. 1986). A demand is an unnecessary preliminary to an action for conversion where the defendant's possession is wrongful in its inception.