Bartholomew v. Stobbs

• Decision Date: 28 October 1932
• Citation: 182 N.E. 846,280 Mass. 559
• Parties: BARTHOLOMEW v. STOBBS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

280 Mass. 559

182 N.E. 846

BARTHOLOMEW

v.STOBBS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Oct. 28, 1932.

Appeal from Superior Court, Suffolk County; Abraham E. Pinanski, Judge.

Suit by William F. Bartholomew against George R. Stobbs, executor of the will of Carl Bonney, and others. From the decree in favor of defendants, plaintiff appeals.

Affirmed.

R. W. Frost, of Boston, for appellant.

L. E. Stockwell, of Worcester, for appellees.

FIELD, J.

This suit in equity against George R. Stobbs, executor of the will of Carl Bonney, and the members of the firm of Clark, Childs and Company was begun December 1, 1931. The bill alleges that Bonney died October 30, 1928, and that Mr. Stobbs was appointed executor and gave bond which was approved November 21, 1928.

The bill alleges also that the deceased had two accounts with Clark, Childs and Company, a ‘commodity account’ and a ‘security account,’ that at the moment of his death there was a deficiency in the ‘commodity account’ in the amount of $4,000 which was made good upon transfer of credits from the plaintiff's account with Clark, Childs and Company, that this transfer was made at a time when the plaintiff was ignorant of the death of Bonney, that after the death of Bonney his executor ordered a sale of bonds held as collateral security on the ‘security account’ and demanded the credit balance on the two accounts which then amounted to $2,808 as a result of the transfer of credits by the plaintiff and the sale of the bonds held as security, that an action was brought by the executor to recover this amount from Clark, Childs and Company who in this action were refused a set-off of the claim of the plaintiff, one of the partners in the firm, for $4,000 on account of the transfer of his credits, and that the executor has recovered judgment against the firm for $2,808. There are further allegations that the plaintiff advanced money to Bonney during his lifetime and that Bonney made some repayments on account thereof.

The plaintiff prays that the executor be restrained from collecting the judgment obtained by him against Clark, Childs and Company, that the plaintiff have judgment against the executor for the amount due him, and that Clark, Childs and Company be ordered to pay to the plaintiff the amount found due from them to the executor.

The executor demurred on the grounds that the bill does not set forth a cause of action entitling the plaintiff to relief in equity, and that the cause of action is barred by the statutes of limitations set forth respectively in G. L. c. 197, § 9, and in G. L. c. 260, § 11. An interlocutory decree was entered sustaining the demurrer and later a final decree dismissing the bill. The plaintiff appealed.

The demurrer was sustained rightly on the ground that the bill does not set forth a cause of action.

On the allegations of the bill the transfer of credits from the plaintiff's account was made to discharge a debt of the deceased to Clark, Childs and Company. Such a transfer was the equivalent of payment in cash (Ryan v. Whitney, 257 Mass. 218, 225, 153 N. E. 449), but, so far as appears in the bill, the payment by the plaintiff was purely voluntary. There is no allegation that the plaintiff was the agent of the executor, or of the deceased before his death, that the plaintiff acted at the express request of the deceased or his executor or that the payment was subsequently ratified by the executor. No facts are set forth showing any legal or moral duty on the part of the plaintiff to pay the debt or implying a request by the deceased or his executor for payment thereof. The effect of such allegations need not be considered.

It is settled that an action at law will not lie to obtain reimbursement of a pure volunteer for the gratuitous payment by him of a debt of a defendant. Acceptance and retention of the unsought benefit resulting from the payment of the debt, without more, do not create an obligation enforceable at law. Foote v. Cotting, 195 Mass. 55, 60, 61, 80 N. E. 600, 15 N. R. A. (N. S.) 693; Newell v. Hadley, 206 Mass. 335, 343, 344, 92 N. E. 507,29 L. R. A. (N. S.) 908, and cases cited. French v. Meyer, 220 Mass. 451, 454, 107 N. E. 956. The plaintiff, as a pure volunteer, could not maintain such an action against the executor on the ground that by the payment the executor or the estate which he was administering was unjustly enriched. See Foote v. Cotting, 195 Mass. 55, 63, 80 N. E. 600,15 L. R. A. (N. S.) 693.

The plaintiff was not the less a volunteer, as between himself and the executor, because of his ignorance of the death of Bonney. He was not, so far as is disclosed by the bill, misled in this particular by the executor. Nor does it appear that the fact in regard to which he was...