Delval v. Gagnon

• Citation: 213 Mass. 203,99 N.E. 1095
• Parties: DELVAL v. GAGNON et al.
• Decision Date: 12 December 1912
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

213 Mass. 203

99 N.E. 1095

DELVAL v. GAGNON et al.

Supreme Judicial Court of Massachusetts, Bristol.

December 12, 1912

COUNSEL

D. R Radovsky and F. A. Pease, both of Fall River, for appellant.

L Elmer Wood, of Fall River, for appellees.

OPINION

DE COURCY, J.

This is a bill to reach the verdict obtained in the action of Gagnon v. Legare and to apply it in satisfaction of a debt alleged to be due from Gagnon to the plaintiff Delval. The case is here on an appeal from the decree of the superior court dismissing the bill.

Unquestionably the balance due upon the loan made by Mrs. Gagnon to Oscar D Gagnon before her marriage to him can be recovered by her assignee; and that exceeds the amount of the verdict. McKeown v. Lacey, 200 Mass. 437, 86 N.E. 799, 21 L R. A. (N. S.) 683, 16 Ann. Cas. 220; Crosby v. Clem, 209 Mass. 193, 95 N.E. 297. Further, we assume, without deciding, that the verdict in the Legare case is 'property' of Gagnon that can be reached by equitable attachment under Rev. Laws, c. 159, § 3, cl. 7. A right of action for personal injuries is not assignable either at law or in equity, and hence a verdict in such a case before judgment does not come within the operation of the statute. Bennett v. Sweet, 171 Mass. 600, 51 N.E. 183. But a right of action for a tortious act occasioning injury to property, such as the conversion of personal property, is assignable and can be reached and applied to the payment of debts. Rice v. Stone, 1 Allen, 566; Pettibone v. Toledo, Cincinnati & St. Louis R. R., 148 Mass. 411, 19 N.E. 337, 1 L. R. A. 787; 4 Cyc. 24, and cases cited.

Nevertheless the trial judge was warranted in dismissing the bill. It appears from the statement of agreed facts that two months before the filing of this bill it was expressly agreed between Gagnon and his attorney Mr. Wood that the proceeds of the judgment about to be obtained in the action against Legare should be taken by Wood on account of Gagnon's indebtedness to him for services and disbursements in that and other litigation. It was not a mere promise to pay the attorney out of the proceeds of the judgment. Even without the agreement he would have a lien for his fees and disbursements in that action. Rev. Laws, c. 165, § 48; Bruce v. Anderson, 176 Mass. 161, 57 N.E. 354. There appears with reasonable certainty an intention to give to Wood a charge or incumbrance upon this specific fund as security for the sum due him; in fact as the indebtedness...