Bayer & Mingolla Const. Co. v. Streeter

• Decision Date: 04 June 1945
• Citation: 61 N.E.2d 542,318 Mass. 311
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: BAYER & MINGOLLA CONSTRUCTION COMPANY, INC. v. CLARENCE R. STREETER & another.

318 Mass. 311

61 N.E.2d 542

BAYER & MINGOLLA CONSTRUCTION COMPANY, INC. v. CLARENCE R. STREETER & another.

Supreme Judicial Court of Massachusetts, Worcester.

June 4, 1945

September 26, 1944.

Present: FIELD, C.

J., QUA, DOLAN WILKINS, & SPALDING, JJ.

Equity Pleading and Practice, Parties.

In a suit in equity to enjoin one of the parties to a tripartite contract from prosecuting a claim thereunder against the plaintiff, another party thereto, failure to join the third party to the contract as a party to the bill required the sustaining of a demurrer to the bill.

A suit in equity was not to be retained, as to one of two defendants who did not demur to the bill, where a demurrer of the other defendant should have been sustained because of failure to join a third person as a defendant.

BILL IN EQUITY filed in the Superior Court on April 28, 1943. The suit was heard on the demurrer of Clarence R. Streeter, Junior, by O'Connell, J. An interlocutory decree confirming a master's report and the final decree were entered by order of Donnelly, J.

S. A. Seder, for the defendant Clarence R.

Streeter, Jr.

W. J. Moossa &amp H.

J. Dumas, for the defendant Clarence R.

Streeter, submitted a brief.

H. T. George & J.

J. George, for the plaintiff, submitted a brief.

SPALDING, J. This is a bill in equity against Clarence R. Streeter (hereinafter called Streeter) and Clarence R. Streeter, Junior (hereinafter called Streeter, Junior). Streeter, Junior filed a demurrer to the bill which was overruled by an interlocutory decree from which he appealed. From a final decree granting injunctive relief against Streeter, Junior, both defendants appealed.

At the outset it is necessary to decide whether the overruling of the demurrer of Streeter, Junior, was correct. The objects of this inartificially drawn bill are obscure and no useful purpose would be served by a detailed analysis of it. Very likely the demurrer should be sustained on the first ground which alleges a failure to plead sufficient facts to entitle the plaintiff to equitable relief. But it is not necessary to consider this because we think that the bill is bad on the fourth ground, which alleges that Eli Jacobson and M. Jacobson & Sons Trust were necessary parties and that the bill failed to make them parties.

It seems that the purpose of the bill, in so far as any can be ascertained, is to enjoin Streeter, Junior, from prosecuting an action at law against the plaintiff arising out of a contract dated March 14, 1941, on the ground that Streeter and not Streeter Junior, was the party with whom ...