Abbott v. Bean

• Decision Date: 09 September 1936
• Citation: 3 N.E.2d 762,295 Mass. 268
• Parties: ABBOTT v. BEAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

295 Mass. 268

3 N.E.2d 762

ABBOTT v. BEAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

September 9, 1936

Report from Superior Court, Suffolk County; Weed, Judge.

Suit in equity by Charles P. Abbott against William K. Bean and others, wherein defendants filed a demurrer, and the judge reported sundry orders and decrees.

Order overruling plea affirmed, and order overruling demurrer reversed, and interlocutory decree entered sustaining demurrer.

R. B. Owen and A. S. Lawrence, both of Boston for plaintiff.

C Hamilton, of Boston, for defendants.

FIELD Justice.

This is a suit in equity. To the bill of complaint as amended, the defendants pleaded in bar a prior adjudication of the issues raised thereby in a suit between the same parties on the same cause of action in which these issues were raised or might have been raised and, without waiving such plea, demurred to the amended bill. The case was heard on the plea and the demurrer. The record of the suit in equity of Abbott v. Bean reported in 285 Mass. 474, 189 N.E. 435, was introduced in evidence in support of the plea. No other evidence was introduced. The judge found and ruled ‘ that the cause of action in said earlier case is not the same cause of action which the plaintiff seeks to litigate in the present case and that the issues and cause of action set forth in the present bill have not become res judicata because of the decision in the earlier case,’ and ordered the plea ‘ overruled.’ The judge also ordered the demurrer overruled. He made a report in these terms: ‘ Being of the opinion that my orders and the interlocutory decrees entered in conformity therewith so affect the merits of the controversy that the matter ought, before further proceedings, to be determined by the Supreme Judicial Court, I report the question for that purpose upon the amended bill of complaint, the defendants' demurrer and plea thereto, and my orders and decrees thereon.’ The record of the suit of Abbott v. Bean, above referred to, is incorporated in the report by reference.

First. The plea was overruled rightly.

Obviously the plea was heard not merely on its sufficiency as matter of law but on the truth of the fact therein set forth, and was ‘ overruled’ in the sense that it was not sustained but was disproved. See Reilly v. Selectmen of Blackstone, 266 Mass. 503, 509, 165 N.E. 660. Since the plea sets up an affirmative defense the burden of establishing such defense was on the defendants. Sandler v. Silk (Mass.) 198 N.E. 749. The report brings before us all the evidence which was before the trial judge-the record of the previous suit. And it is for us to determine whether by that record the defense is established.

The suits are between the same parties. According to the allegations of the bills they arose out of the same series of transactions, which were in substance as follows: An arrangement was made between the plaintiff and the defendant Bean whereby Bean was to obtain an option for the purchase of certain real estate in Boston. Bean caused to be executed a written agreement dated April 5, 1932, between the owners of the real estate and one Yaffe which in effect gave to Yaffe an option to purchase the real estate for $85,000 expiring July 1, 1932, ‘ unless otherwise agreed upon in writing.’ This agreement provided that if the premises were taken by eminent domain during the period of the option the vendor should pay to the vendee the damages received over and above the option price fixed thereby and the costs of collection of such damages. Bean obtained from Yaffe an assignment to himself by a written instrument dated April 13, 1932, of Yaffe's ‘ right, title and interest in and to said agreement.’ Thereafter, on or about April 18, 1932, by a written instrument Bean assigned to the plaintiff ‘ seventy per cent (70%) of the net profits earned and/or realized out of and from said agreement,’ and the plaintiff indorsed on such instrument his assent to the terms of the option agreement and the assignment thereof. On or before July 1, 1932, Bean advised the plaintiff that he had obtained an extension of the option agreement to September 1, 1932, and thereafter advised the plaintiff that he had obtained a further extension or extensions thereof-according to the bill in the earlier case, ‘ the last extension running to early in October, 1932,’ and according to the bill in this suit the last extension being ‘ for a period of two months' from September 1, 1932. On July 1, 1932, however, Bean, instead of obtaining an extension of the previous option agreement, entered into an agreement in writing with the owners of the real estate similar to the option agreement previously obtained which in effect gave him an option to purchase the real estate for $85,000 expiring September 1, 1932, which was later extended to October 14, 1932. Copies of the option agreements and assignments above referred to are attached to the bills. All instruments above described, including the plaintiff's assent indorsed on the assignment of April 18, 1932, purport to have been under seal. The city of Boston on October 1, 1932, made a taking of the real estate in question, awarded the owners the sum of $134,000 and paid the owners in three drafts. These owners, under instructions from Bean, thereafter turned over to the defendant Hamilton, as attorney for Bean, one of these drafts for $46,091.50. The defendant Hamilton exchanged this draft for four ‘ cashiers' checks' in the sum of $10,000 each, payable to him, and $6,091.50 in cash and thereafter delivered two of these checks to the defendants George M. Poland and Frederick H. Davis, and two of them to the defendant Francis T. Leahy. The defendant Hamilton has refused upon demand of the plaintiff to pay him the whole or any part of the amount of the draft, and the defendant Bean has refused upon demand of the plaintiff to instruct the defendant Hamilton to pay over his share of the proceeds of the transaction. Though the prayers of the bills are somewhat different the bills in substance seek the same relief, namely, the recovery by the plaintiff of his share of said sum of $46,091.50. In the previous case the defendants Bean and Hamilton demurred on various grounds including, want of equity and the defendants Poland, Davis and Leahy answered. Interlocutory decrees were entered sustaining the demurrers generally and denying the plaintiff's motion to amend the bill by substituting a new bill. The proposed substitute bill contained some, but not all, of the allegations contained in the bill in the later suit. Thereafter a final decree was entered dismissing the bill with costs. From these decrees the plaintiff appealed to this court which, by its rescript, ordered the decrees affirmed, and thereafter a final decree was entered dismissing the bill with costs.

There are these differences between the bills of complaint in the two suits: (1) The bill in the earlier suit alleged with respect to the original arrangement between the plaintiff and the defendant Bean that the plaintiff ‘ asked’ this defendant ‘ to obtain for him an option to purchase the premises * * * and the defendant Bean agreed to negotiate with the * * * owners for such an option.’ The bill in the present suit alleges that the plaintiff ‘ employed’ this defendant ‘ to obtain for him, the plaintiff, an option to purchase the premises * * * and the defendant Bean agreed to obtain said option and as consideration for the obtaining of the said option and any further activities to be performed by the defendant Bean in connection with any deal or transaction with regard to said premises, it was agreed between the parties that if any profit was realized as a result of the obtaining of said option and/or any deal or transaction with regard to said premises * * * said profits would be divided as follows: 70% to the plaintiff and 30% to the defendant Bean.’ (2) The bill in the present suit contains allegations not contained in the bill in the earlier suit to the effect (a) that at about the time of the execution of the first option agreement by Bean ‘ the plaintiff informed the defendant Bean that the time limited was too short and the defendant Bean stated to the plaintiff that the owners had in formed him that they would be willing to extend the time for a total period of six months from July 1, 1932, said extensions to be for periods of two months each; that he, Bean, would obtain such extensions,’ (b) that the plaintiff, after the execution of the assignment of April 18, 1932, and prior to July 1, 1932, ‘ called to the attention of the defendant Bean the necessity of securing an extension of said time and Bean stated that he would obtain such extension,’ and that again prior to September 1, 1932, similar statements were made by the plaintiff and Bean, that when the defendant Bean stated to the plaintiff that he would obtain an extension ‘ he at that time intended not to obtain such extension,’ (c) that the statements of the defendant Bean that the sellers had executed an extension of the first option agreement to September 1, 1932, and again for a period of two months thereafter, were false and known by the defendant Bean to be false at the times they were made, and (d) that the statements of Bean after the execution of the assignment of April 18, 1932, and prior to July 1, 1932, were made by him with the intent that the plaintiff should rely thereon, that the plaintiff did rely thereon and as a result of the statements ‘ took no steps on his own behalf to procure either an extension * * * [of the option agreement] or a new agreement with the owners of the property providing for a later time for the transfer of property thereunder and the payment of the consideration; that he took no steps...