Beacon Trust Co. v. Wright
| Decision Date | 14 September 1934 |
| Citation | 288 Mass. 1 |
| Parties | BEACON TRUST COMPANY v. JOSEPH G. WRIGHT, Administrator. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
May 16, 17, 1934.
Present: RUGG, C.
J., CROSBY, PIERCE DONAHUE, & LUMMUS, JJ.
Sheriff. Attachment.
Damages, For tort. Evidence, Presumptions and burden of proof, Competency. Bankruptcy. Practice, Civil, Death of party. Judgment, Nunc pro tunc.
In an action against a sheriff for failure by his deputy to perfect an attachment in a previous action brought by the plaintiff only nominal damages can be recovered if on all the evidence no real damage to the plaintiff appears to have resulted from such failure.
At the hearing of an action of the character above described, there was evidence that the plaintiff in 1925 commenced an action against a corporation and directed a deputy sheriff to make an attachment of the corporation's real estate, which had a value greater than the amount of the plaintiff's claim that the deputy made the attachment, but failed to perfect it in the manner required by G.L.c. 223, Sections 63-66; that the corporation, on a voluntary petition, was adjudicated a bankrupt more than four months after the day on which the attachment was made; that on that day the corporation was insolvent; that certain other attachments were made by others within the four months previous to the adjudication; that in the bankruptcy proceedings the plaintiff's attachment was adjudged to be void as against the trustee in bankruptcy; and that the plaintiff was paid only a small part of his claim against the corporation. An attorney, who was counsel for several creditors of the corporation and who later filed its petition in bankruptcy, testified that from about the time of the making of the plaintiff's attachment, he was continually watching for attachments of the corporation's property, that as soon as any attachments were made he consulted his clients and the corporation, and that the voluntary petition followed. The trial judge found that if the plaintiff's attachment had been perfected, the corporation would have filed its petition in bankruptcy in due season to vitiate the attachment under the bankruptcy act; and found for the plaintiff in the sum of $1.
Held, that (1) The testimony of the attorney properly was admitted;
(2) The findings by the judge were warranted.
Where it appeared that in May a corporation had failed to make payment of a claim to which there was no defence, and that it was insolvent in
August, and there was nothing to show any change in its financial condition after May, a finding that it was insolvent in May was warranted.
Where the defendant in an action died after a finding for the plaintiff was made, this court, in overruling exceptions, stated that judgment might be entered nunc pro tunc as of the date of the finding.
CONTRACT OR TORT, originally against John R. Fairbairn and after his death defended by the administrator of his estate. Writ dated April 25, 1927.
The action was heard in the Superior Court by Brown, J., without a jury. Material agreed facts and evidence are stated in the opinion. The judge found for the plaintiff in the sum of $1. The plaintiff alleged exceptions.
R. Clayton, for the plaintiff. G. Alpert, for the defendant.
This is an action with one count in contract and another in tort (G L. [Ter. Ed.] c. 231, Section 7, 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, Sections 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 (30 U.S. Sts. at Large, 565), 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. The plaintiff has received only a small amount 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 Met. 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. Slocum v. Riley, 145 Mass. 370 . Stern v. Knowlton, 184 Mass. 29 . Kalbritan v. Isidor, 255 Mass. 494 , 499. 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. Citizens Banking Co. v. Ravenna National Bank, 234 U.S. 360. Bonnin & Co. v. Vazquez, 4 F. (2d) 103. Compare now Act of May 27, 1926, 44 U.S. Sts. at Large, 662, Section 3; Elkay Reflector Corp. v. Savory, Inc. 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...
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