Bethlehem Fabricators, Inc. v. H.D. Watts Co.

• Decision Date: 01 June 1934
• Citation: 286 Mass. 556,190 N.E. 828
• Parties: BETHLEHEM FABRICATORS, Inc., v. H. D. WATTS CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

286 Mass. 556

190 N.E. 828

BETHLEHEM FABRICATORS, Inc.,

v.H. D. WATTS CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 1, 1934.

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

Suit by the Bethlehem Fabricators, Inc., against the H. D. Watts Company and others. From a final decree in favor of the plaintiff, the defendant named appeals.

Decree affirmed.H. R. Bygrave, of Boston, for appellant H. D. Watts Co.

J. N. Welch and A. Brayton, both of Boston, for appellee.

FIELD, Justice.

This is a suit in equity brought by a Pennsylvania corporation under G. L. (Ter. Ed.) c. 214, § 3(7), to reach and apply the property of the defendant H. D. Watts Company, a Maryland corporation, hereinafter referred to as the principal defendant or the appellant, to the payment of a debt from said defendant to the plaintiff. The original bill, filed February 18, 1928, joined also as defendants, American Bond & Mortgage Company, a Maine corporation having a usual place of business in Boston, and William J. Moore of Chicago, Illinois. The sufficiency of service upon the principal defendant as a nonresidentdefendant and of service upon the other defendants is not questioned. This bill alleged that the principal defendant owed the plaintiff ‘for goods sold and delivered’ according to an account annexed which included, also, items for labor, and that said defendant had a certain asset which could not be reached and attached in an action at law, ‘namely, a certain cause of action against the defendants William J. Moore and American Bond and Mortgage Company for damages caused by unlawful interference with a certain contract of the H. D. Watts Company,’ and had caused suit to be brought against the other defendants in the Superior Court for the County of Suffolk ‘on said cause of action and said action is at present pending.’ An interlocutory decree was entered restraining the defendant American Bond & Mortgage Company ‘from paying any sum in payment, settlement or satisfaction of said cause of action.’ The principal defendant, appearing specially for the purpose of objecting to the jurisdiction of the court, filed a so-called ‘motion to dismiss' and a demurrer on the grounds that the court had no jurisdiction to reach and apply ‘the verdict described in the Bill,’ and no jurisdiction of the cause of action because all the parties to the bill ‘are foreign to this jurisdiction, and the debt alleged should be first adjudicated and reduced to judgment elsewhere.’ The judge treated this ‘motion to dismiss' as a demurrer and by an interlocutory decree overruled it, and also overruled the demurrer ‘without prejudice to the [principal] defendant to set up the same allegations of defense in its answer.’ From this interlocutory decree the principal defendant appealed.

After the entry of the interlocutory decree, the principal defendant, on April 28, 1928, purporting to appear specially and not to waive its objections to the jurisdiction or its demurrer, or ‘motion to dismiss,’ filed an answer in which it did not plead to the allegation that the plaintiff had a cause of action as alleged, but admitted that it had caused suit to be brought against the other defendants. The record does not disclose that the defendant Moore filed an answer. On April 30, 1928, the defendant American Bond & Mortgage Company, Inc., filed an answer objecting to the jurisdiction and denying that the principal defendant had or ever had a cause of action against it or the defendant Moore.

The plaintiff, on July 17, 1930, filed a so called ‘supplemental bill’ amending the original bill by adding as parties defendant the United States Fidelity & Guaranty Company, a Maryland corporation, having a usual place of business in Boston, the sheriff of Suffolk County, the clerk of the Suffolk Superior Court, and H. Robert Bygrave; adding allegations that the cause of action of the principal defendant against the defendant American Bond & Mortgage Company set forth in the original bill had been reduced to judgment in favor of the principal defendant, that an execution on said judgment had been issued by the clerk of the Suffolk Superior Court, that there was outstanding a bond given by the defendant American Bond & Mortgage Company as principal and the United States Fidelity & Guaranty Company as surety for the purpose of dissolving an attachment obtained by the principal defendant ‘upon the property of the American Bond & Mortgage Company in connection with its suit on the cause of action set forth in the original bill of complaint,’ that H. Robert Bygrave, the attorney for the principal defendant, has in his possession the execution in favor of the principal defendant, and that it was the intention of the principal defendant to avoid the effects of the injunction previously issued by having the execution returned to the clerk of the Suffolk Superior Court unsatisfied and thereupon to bring suit on its judgment in another State, and adding prayers for additional relief.

The defendant United States Fidelity & Guaranty Company filed an answer to the original bill and to the ‘supplemental bill’ in which it admitted the allegations in the ‘supplemental bill’ as to the reduction to judgment in favor of the principal defendant of the cause of action of said defendant against the American Bond & Mortgage Company, the issuance of the execution thereon and the existence of an outstanding bond for the purpose of dissolving the attachment. And there was evidence in support of the allegations so admitted.

An interlocutory decree was entered on July 25, 1930, dissolving injunctions previously issued, except as modified by the decree, enjoining the defendants American Bond & Mortgage Company and United States Fidelity & Guaranty Company from paying any sum of money to the principal defendant except to H. Robert Bygrave as its attorney, and ordering said H. Robert Bygrave, after satisfying certain claims for fees and expenses due from the principal defendant, to retain the sum of $30,000 until the further order of the court, out of any sum or sums paid to him by the defendants American Bond & Mortgage Company and United States Fidelity & Guaranty Company, or that might be collected by him ‘as the result of any levy upon and execution existing in favor of the H. D. Watts Company, against the American Bond & Mortgage Company, or against the United States Fidelity & Guaranty Company.’ Another interlocutory decree was entered dismissing the bill against the defendant William J. Moore.

The judge who heard the case on the merits made findings of fact, rulings of law, and an order for a decree. The judge found warrantably on the evidence, among other facts, that ‘On February 26, 1931, Mr. Bygrave, as attorney for H. D. Watts Company, received from the American Bond & Mortgage Company, and the United States Fidelity & Guaranty Company, certified checks, a certificate of deposit and other things of value in excess of $300,000, and from the proceeds thereof he has retained in his possession the sum of $30,000 in compliance with the terms of the interlocutory decree of July 24, [25] 1930, and is holding said sum pending further order of the Court in this case.’ In accordance with the order a final decree was entered establishing the indebtedness of the principal defendant to the plaintiff in the sum of $26,619.18, ordering the defendant H. Robert Bygrave to pay to the plaintiff out of the fund of $30,000 held by him under the interlocutory decree the sum so established with interest and costs and to account for any balance thereof to the principal defendant, and dismissing the bill as to all other defendants. From this final decree the principal defendant appealed. The evidence is reported.

The final decree was right for (a) the plaintiff, in the circumstances existing when the original bill was filed, was entitled under G. L. (Ter. Ed.) c. 214, § 3(7) to relief in equity, (b) the so called ‘supplemental bill’ properly brought before the court for its consideration changes in circumstances occurring after the filing of the original bill and those changes as disclosed by the evidence and the findings thereon did not destroy the plaintiff's right to equitable relief, and (c) the relief granted to the plaintiff by the decree was appropriate on the pleadings and the facts found.

First. The plaintiff, in the circumstances existing when the original bill was filed, was entitled to relief in equity under G. L. (Ter. Ed.) c. 214, § 3(7).

Under this statute suits in equity can be brought ‘by creditors to reach and apply, in payment of a debt, any property, right, title or interest, legal or equitable, of a debtor, within or without the commonwealth, which cannot be reached to be attached or taken on execution in an action at law, although the property sought to be reached and applied * * * is of uncertain value, if the value can be ascertained by sale, appraisal or by any means within the ordinary procedure of the court.’

1. At the time the original bill was filed there was ‘a debt * * * of a debtor * * * without the commonwealth,’ the appellant, to the plaintiff.

The judge found—and we cannot pronounce his findings plainly wrong—that the plaintiff entered into a written contract with the appellant ‘by which the former undertook to furnish certain building materials and perform certain work in connection with the erection’ of a building in Virginia, that in pursuance of this contract the plaintiff furnished such building materials and performed such labor, and thereafter, on December 30, 1922, sent to the appellant a final bill in the amount stated in the original bill of complaint, no part of which has been paid, that before the bill of complaint was filed a representative of the appellant, ‘with authority so to do, for and in behalf of’ the appellant, agreed that the balance due from it to the plaintiff was $17,142.33, the amount set forth in the final bill,...