Arwshan v. Meshaka

• Decision Date: 22 September 1934
• Citation: 192 N.E. 162,288 Mass. 31
• Parties: ARWSHAN et al. v. MESHAKA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

288 Mass. 31

192 N.E. 162

ARWSHAN et al.

v.MESHAKA.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 22, 1934.

Appeal from Superior Court, Suffolk County; Whiting and Greenhalge, Judges.

Suit in equity by Tony George Arwshan and another against Najeeb N. Meshaka. From a final decree based on a master's report and an interlocutory decree sustaining an exception thereto, the plaintiffs appeal.

Interlocutory decree modified, final decree reversed, and case remanded, with directions.

A. Saxe, of Boston, for appellants.

H. M. Lichtenstein, of Boston, for appellee.

LUMMUS, Justice.

This is a bill for an accounting, brought by the owners of land against one who managed it for them under a sealed power of attorney. A master found that there was due from the plaintiffs to the defendant a balance of $3,449.44, of which $1,461.38 consisted of obligations to various persons for labor and materials in erecting a building on the land for which the defendant had incurred personal liability but which he had not paid. The master found that the defendant is entitled to this balance only upon payment of ‘the existing unpaid obligations incurred by him.’ The judge sustained the defendant's exception to the master's report, based on his objection numbered 1, to the foregoing condition of the defendant's right to payment of the balance, and awarded the defendant $3,449.44 unconditionally. The plaintiffs appealed from the final decree.

The plaintiffs contend that because the defendant, pendente lite, assigned his claim against them to his counsel conducting the present suit, the suit abates, the defendant no longer having any claim to relief. It is true, that under the original equity practice a complete assignment pendente lite by a sole plaintiff did abate a suit in the sense that it could not be further prosecuted until the assignee, by bringing an original bill in the nature of a supplemental bill, substituted himself as plaintiff. Fulton v. Greacen, 44 N. J. Eq. 443, 15 A. 827;Campbell v. New York (C. C.) 35 F. 14;Pittsburg, S. & N. Railroad v. Fiske (C. C. A.) 178 F. 66;Carson v. American Smelting & Refining Co. (C. C. A.) 11 F. (2d) 764;Doak v. Hamilton (C. C. A.) 15 F. (2d) 774, 777. But the learning once expended on that point of practice is now obsolete. A simple amendment now suffices to bring in the assignee as a party and to substitute him for the plaintiff. Rule 16 of the Superior Court (1932). Equity Rule 21 (252 Mass. 606). Even that, in the present case, would be the merest form. In a bill for an accounting, both parties in a sense are actors, and relief may be given either way, without any need of counterclaim (Hale v. Hillcrest Realty Co., Inc., 276 Mass. 63, 71, 176 N. E. 777), but an assignment by one party does not put him out of the case, for both parties remain entitled to have his liability or nonliability determined by the decree. In a case where, as in the present case, the defendant sought affirmative relief and assigned its claim pendente lite, it was said, ‘An assignment by a defendant of his interest in a litigation does not necessarily defeat a suit. His assignee taking pendente lite is bound by what is done against him. The assignee may, at his own election, come in by an appropriate application, and make himself a party, so as to assume the burden of the litigation in his own name, or he may act in the name of his assignor. A pendente lite assignment carries with it an implied license by the assignor for the use of his name in the cause by the assignee to protect the rights assigned. Of this, the plaintiffs in the action cannot complain, because the assignee is bound by all that is done, whether a party by name or not.’ Ex parte South & N. A. Railroad Co., 95 U. S. 221, 226, 24 L. Ed. 355. This answers completely the objection made by the plaintiffs. See, also, Stone v. Jenkins, 176 Mass. 544, 57 N. E. 1002,79 Am. St. Rep. 343;Henri Peladeau, Limited v. Fred Gillespie Lumber Co., 285 Mass. 10, 188 N. E. 380;Rogers v. Murch, 253 Mass. 467, 470, 471, 149 N. E. 202;Friedberg v. Jablon (Mass.) 192 N. E. 49;State of Russia v. National City Bank of New York (C. C. A.) 69 F.(2d) 44.

The important question is whether the defendant can require payment to him of amounts for which he has become obligated but which he has not yet paid. Where damages include indemnity against expense occasioned by a wrong, as in cases of bodily injury through negligence, a plaintiff may recover for obligations incurred whether he has satisfied them or not. Driscoll v. Gaffey, 207 Mass. 102, 108, 92 N. E. 1010;Cassidy v. Constantine, 269 Mass. 56, 168 N. E. 169, 66 A. L. R. 1186;Malloy v. Carroll (Mass.) 191 N. E. 661. In such cases, the party paying the damages is not directly liable upon the obligations, and is in no danger of being twice mulcted even...