It was therefore within the power of the judge to add interest from the filing of the bill. Young v. Winkley, 191 Mass. 570, 575. Royal Paper Box Co. v. Munro Church Co. 284 Mass. 446, 452.
[3] Plaintiff, on this appeal, does not challenge the action of the trial court in reducing the amount of the judgment, as a condition to denial of a new trial, but merely seeks to have this court remand the cause with directions to the court below to modify the judgment by including interest on the amount of the judgment. Under the authorities, this court, no doubt, has the power to make such an order, provided plaintiff is entitled to interest as prayed for here, and has not by some act of his own estopped himself from seeking such relief. ( Hurst v. Webster, 128 Wis. 342, [107 N.W. 666]; Young v. Winkley, 191 Mass. 570, [ 78 N.E. 377]; People v. California Safe Deposit etc. Co., 34 Cal.App. 269, [ 167 P. 181].) [4] The judgment which was entered in plaintiff's favor followed the finding of the jury.
This court has allowed interest in cases in equity from the date of the filing of the bill. Young v. Winkley, 191 Mass. 570, 575-576. The question before us is whether the court erred in allowing this interest in view of the restraining order.
That, however, may be provided for in the final decree to be entered after rescript. See Young v. Winkley, 191 Mass. 570, 575-576; Boyer v. Bowles, 316 Mass. 90, 95. In view of the result just reached the only exception of the plaintiff that need be considered is that taken to the refusal of the master to find that the defendant was accountable to Durfee Canning for $35,505.75 as the profit made by him in the sale of natural gasoline by him to that corporation between November 1, 1944, and March 31, 1945, by using as the measure the average mark-up per gallon for the period from June 4, 1942, through October 31, 1944. That figure could only be reached, if at all, by way of inference, since there was no evidence of the prices paid by Pacific to Warren during that period. It was not possible to serve process on Pacific, a foreign corporation, to compel production of its pertinent records, and the defendant refused to produce them on the ground that they were not under his personal as distinguished from his official control.
As the precise dates when these sums were paid do not appear, and as the master has not included interest in his report, interest will be added from the first day of January, 1936, by which time, as we construe the report, the entire sum had been expended. Young v. Winkley, 191 Mass. 570, 575. Earle v. Whiting, 196 Mass. 371, 372. 4. The plaintiff is entitled to recover from the defendants Gove the sum of $15,770.81, being so called interest paid by them out of funds of the plaintiff to themselves and others on loans made to the plaintiff by them and others whom they represented.
Robinson v. Pero, 272 Mass. 482, 484. Ryder v. Donovan, 282 Mass. 551, 554. Hannah v. Frawley, 285 Mass. 28, 31. Jason v. Jason, 289 Mass. 72, 79. The master's finding of subsidiary facts, which ordinarily cannot be attacked because the evidence is not reported, prevails over any conclusion reached by him inconsistent with the subsidiary facts found. Young v. Winkley, 191 Mass. 570, 573. Craig v. Warner, 216 Mass. 386, 393. Arcisz v. Pietrowski, 268 Mass. 140, 146. Vinal v. Gove, 275 Mass. 235, 242. Glazer v. Schwartz, 276 Mass. 54, 56. See also Nelson v. Belmont, 274 Mass. 35, 39; Lawyers Mortgage Investment Corp. of Boston v. Paramount Laundries Inc. 279 Mass. 314, 319; Duralith Corp. v. Leonard, 274 Mass. 397, 401. A master is not always required to find subsidiary facts by which the validity of his general findings may be tested. It would be impracticable for him to analyze every finding into its constituent elements, or, to change the figure, to exhibit the entire structure of evidence and inference upon which every finding rests. Haskell v. Merrill, 179 Mass. 120, 123. Prudential Trust Co. v. McCarter, 271 Mass. 132, 139. Whether, or how far, he shall be required to do that with respect to any finding, rests in the discretion of the court that appointed him. Epstein v. Epstein, 287 Mass. 248, 254. Pearson v. Mulloney, 289 Mass. 508, 513.
The evidence not being reported, the master's findings must stand as it does not appear that they are inconsistent, or contradictory and plainly wrong. Young v. Winkley, 191 Mass. 570. Glover v. Waltham Laundry Co. 235 Mass. 330, 334. The relations between the plaintiff and the defendants as found by the master were not those which ordinarily exist between a broker and his customer: the findings conclusively show that the relationship was one of trust and confidence, Reed v. A.E. Little Co. 256 Mass. 442, Wendt v. Fischer, 243 N.Y. 439, 443, 444, and that relying upon the good faith of the defendants the plaintiff placed in their hands for investment about $82,000, all the money she possessed.
The omission of the auditor to include interest in the damages did not prevent the judge from doing so. Young v. Winkley, 191 Mass. 570, 575. The plaintiff does not lose its interest merely because the case has been delayed a long time; it has waited equally long for its compensation.
The evidence before him is not reported. It follows that the facts found are conclusive upon the face of the report unless they are inconsistent with each other or are plainly wrong. Young v. Winkley, 191 Mass. 570. In substance the facts which follow appear in the report: The parties to the bill of complaint are father, mother and son. The parents, as joint tenants, on November 23, 1904, acquired title to certain real estate situated on the easterly side of Main Street, in the town of Hatfield, with the buildings thereon consisting of a two-family house, blacksmith shop, cider mill, and tobacco shed.
Fay v. Corbett, 233 Mass. 403. Peter Bent Brigham Hospital v. McClure, 245 Mass. 370. The evidence which was before the master is not reported. It follows that the facts found by him must stand, unless they are inconsistent with each other or otherwise plainly wrong. Young v. Winkley, 191 Mass. 570. Shortly stated, the facts which are pertinent to the issue raised by the appeal are as follows: On November 17, 1925, one Lizzie Grossman, who is not a party to this litigation, borrowed from the defendant Harrington $1,000, and gave him a note therefor secured by a mortgage on four parcels of real estate, one of which was known as the Wyman Street property.