Beacon Trust Co. v. Wright

• Decision Date: 15 September 1934
• Citation: 192 N.E. 70,288 Mass. 1
• Parties: BEACON TRUST CO. v. WRIGHT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

288 Mass. 1

192 N.E. 70

BEACON TRUST CO.

v.WRIGHT.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 15, 1934.

Exceptions from Superior Court, Suffolk County; N. P. Brown, Judge.

Action in contract and in tort by the Beacon Trust Company against Joseph G. Wright, as administrator of the estate of John R. Fairbairn, deceased, heard by a judge of the superior court without a jury. Finding for plaintiff in the sum of $1, and the plaintiff brings exceptions.

Exceptions overruled.R. Clayton, of Boston, for plaintiff.

G. Alpert, of Boston, for defendant.

LUMMUS, Justice.

This is an action with one count in contract and another in tort (G. L. [Ter. Ed.] c. 231, § 7, cl. Sixth), against a sheriff for the failure of his deputy to deposit a certified copy of the original writ, without the declaration, and so much of the return thereon as related to an attachment of land, in the registry of deeds for the Northern District of Middlesex, where the attached land lay, as provided by G. L. (Ter. Ed.) c. 223, §§ 63-66. The trial judge, sitting without a jury, found for the plaintiff, and assessed damages in the sum of $1. The plaintiff alleged exceptions.

There was evidence that Lyon Carpet Company, the defendant in the action in which the attachment was made on May 13, 1925, owned unencumbered real estate in Lowell, then valued at $15,000 to $20,000, although it brought only $10,000 in March, 1927; that the claim of the plaintiff in that action was for $13,824.77, which was justly due; and that other creditors of Lyon Carpet Company made and perfected four attachments of its real estate upon claims amounting in all to $13,200, between August 8, 1925, and September 26, 1925, which, being less than four months old, would have been dissolved upon the adjudication of Lyon Carpet Company as a bankrupt on September 28, 1925, under section 67f of the Bankruptcy Act (U. S. C. title 11, § 107(f) [11 USCA § 107(f)]), but for the fact that upon petition of the trustee in bankruptcy the right under those attachments was preserved for the benefit of the bankrupt estate. The attachment of the plaintiff was held to be void as against the trustee in bankruptcy. In re Lyon Carpet Co., 25 F.(2d) 509 (D. C. Mass.). The plaintiff has received only a small dividend from the bankrupt estate.

The plaintiff contends that the neglect of the defendant's deputy cost the plaintiff the collection of its claim in full, since the plaintiff's attachment, if perfected on May 13, 1925, or within three days thereafter, would have been good against bankruptcy occurring on September 28, 1925, more than four months later, and the land when attached had a value exceeding the amount of the plaintiff's claim.

Presumptively, the amount of the judgment to which a plaintiff is entitled, or the value of the property attached if that be smaller, is the measure of the loss resulting from a wrongful failure to make or perfect an attachment. Weld v. Bartlett, 10 Mass. 470, 474;Young v. Hosmer, 11 Mass. 89, 90;West v. Rice, 9 Metc. 564, 568; Hobson v. Thelluson, L. R. 2 Q. B. 642, 649. But that is only a presumption, and if on the whole evidence there is no real damage, only nominal damages can be recovered. McKay v. Coolidge, 218 Mass. 65, 67, 105 N. E. 455,52 L. R. A. (N. S.) 701, Ann. Cas. 1916A, 883; Slocum v. Riley, 145 Mass. 370, 14 N. E. 174;Stern v. Knowlton, 184 Mass. 29, 67 N. E. 869;Kalbritan v. Isidor, 255 Mass. 494, 499, 152 N. E. 48. Compare Hobson v. Thelluson, L. R. 2 Q. B. 642, 651, denying even nominal damages in such a case.

It is true that in 1925 the failure to dissolve an attachment for four months was not an act of bankruptcy, and if the defendant's deputy had perfected the attachment by depositing the certified copy in the registry of deeds no involuntary petition against Lyon Carpet Company could have been brought on that account. Citizen' Banking Co. v. Ravenna National Bank, 234 U. S. 360, 34 S. Ct. 806, 58 L. Ed. 1352;Bonnin & Co. v. Vazquez (C. C. A.) 4 F.(2d) 103. Compare now Act of May 27, 1926, 44 U. S. Stat. 662, c. 406, § 3 (11 USCA § 21); Elkay Reflector Corp. v. Savory, Inc. (C. C. A.) 57 F. (2d) 161. But an attorney at law who was counsel for a number of creditors of Lyon Carpet Company, and later brought a voluntary petition in bankruptcy in its behalf, testified that from a day early in May, 1925, he was continually watching the recorded real estate attachments for attachments upon the property of that company. As soon as any attachments were made, he consulted his clients and that company, and the voluntary petition followed. The trial judge found ‘that had the attachment of May 13, 1925, been perfected by a proper record, the Lyon Carpet Company would have filed a voluntary petition in bankruptcy in due season to vitiate the attachment under the bankruptcy act.’ This case is not governed by Palmer Electric & Mfg. Co. v. Underwriters' Laboratories, Inc., 284 Mass. 550, 556, 557, 188 N. E. 257. There the defendant permitted improper competition to the plaintiff's harm every day during the period in question, and then sought to escape the payment of the damages by speculating as to what would have happened had it forbidden the competition in the first place. In the present case, the wrongdoing of the defendant's deputy took place on May 13, 1925, and the damage depends upon the consequence of that wrongdoing, which involves the probable conduct of persons interested. The evidence of the attorney was properly admitted, and supported the finding. Hobson v. Thelluson, L. R. 2 Q. B. 642, 8 Best & Smith, 476.

But the plaintiff contends that even if a voluntary petition in bankruptcy had been brought within four months after May 13, 1925, the plaintiff's attachment, had the defendant's deputy properly perfected it, would not have been dissolved, because bankruptcy dissolves attachments less than four months old only when the debtor was insolventat the time of the attachment (Liberty National Bank of Roanoke v. Bear, 265 U. S. 365, 44 S. Ct. 499, 68 L. Ed. 1057;Id., 276 U. s. 215,48 S. Ct. 252, 72 L. Ed. 536), and here there was no sufficient evidence of such insolvency. The evidence of such insolvency relied on to support the finding was the admission of the plaintiff, filed in proceedings in the bankruptcy court, that Lyon Carpet Comapny was insolvent on August 5, 1925, nearly three months after the date, May 13, 1925, upon which its solvency or insolvency is now material. It has been held that an adjudication in bankruptcy is no evidence in a case like this...