Blume v. Oil-O-Chron, Inc.

• Decision Date: 13 June 1934
• Citation: 287 Mass. 52,191 N.E. 131
• Parties: BLUME v. OIL-O-CHRON, Inc., et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

287 Mass. 52

191 N.E. 131

BLUME

v.OIL-O-CHRON, Inc., et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 13, 1934.

Exceptions from Superior Court, Suffolk County; Macleod, Judge.

Suit in equity by Irving Blume against Oil-O-Chron, Incorporated, Morris Reingold, and others, in which the defendant Oil-O-Chron, Incorporated, presented a counterclaim against the plaintiff and the defendant Reingold. Bill dismissed as against defendant Reingold, who brings exceptions to rulings on the counterclaim.

Exceptions overruled.

S. T. Lakson, of Boston, for defendant Oil-O-Chron, Inc.H. A. Bowen, of Lynn, for defendant Morris Reingold.

LUMMUS, Justice.

The plaintiff sued in equity to obtain shares of stock in the defendant corporation, Oil-O-Chron, Inc., which, he asserted, had been promised him when that corporation took over the business of a partnership consisting of himself and the defendants Reingold and Kramer. The master found against him, the final decree gave him no relief, and he did not appeal.

The matter before us concerns a counterclaim presented by the defendant Oil-O-Chron, Inc. against the plaintiff and the defendant Reingold for breach of warranty in the sale of the partnership business to that corporation.

No such counterclaim was set up in the answer of the defendant Oil-O-Chron, Inc. filed February 9, 1931. See Equity Rule 6 of the Superior Court, in force until January 1, 1932, which adopted Equity Rule 6 of this court. 252 Mass. 602. The master, with the consent of the parties, conducted his hearings on the basis that the counterclaim in question was in issue before him. He did not adopt the correct practice, before proceeding, of requiring the defendant Oil-O-Chron, Inc. to obtain the allowance of an amendment to its answer, setting up the counterclaim (Rule 32 of the Superior Court [1932]), and requiring the plaintiff and the defendant Reingold to reply to it. Rules 25 and 26 of the Superior Court (1932). Instead, he heard an unformulated issue which, the parties assured him, would be shown by pleadings to be filed in the future. As is not unusual in such cases, the parties did nothing to perfect the record.

The hearing of such an issue, though by no means to be commended, was not a nullity. ‘Allegations are made that the parties may have notice; but if both parties were content to act upon what they had, why should either be allowed to complain afterwards?’ Oliver v. Colonial Gold Co., 11 Allen, 283, 285, quoting from the report of the commissioners who framed our system of pleading and practice. See, also, Nash v. D'Arcy, 183 Mass. 30, 66 N. E. 606;Maker v. Bouthier, 242 Mass. 20, 23, 24, 136 N. E. 255;Broitman v. Silver, 278 Mass. 510, 180 N. E. 311;Faulkner v. Lowell Trust Co. (Mass.) 189 N. E. 215;Hull v. Adams (Mass.) 190 N. E. 510;Henderson v. Henderson, 247 N. Y. 428, 433, 160 N. E. 775;Venghis v. Commonwealth Casualty Co., 101 N. J. Law, 151, 127 A. 158. An amendment may be allowed, after a decision, for the purpose of presenting formally on the record an issue already fully and fairly tried without proper pleadings, and thus supporting the decision. Pizer v. Hunt, 253 Mass. 321, 148 N. E. 801;Bourbeau v. Whittaker, 265 Mass. 396, 400, 164 N. E. 453;Ames v. Beal, 284 Mass. 56, 61, 62, 187 N. E. 99;Callahan v. Broadway National Bank of Chelsea (Mass.) 190 N. E. 792.

On May 10, 1932, after the hearings before the master had been completed but before his draft report was made known, a decree was entered by consent of the plaintiff and the defendant Reingold, dismissing the bill as against the latter. Since the record showed no counterclaim at that time, this decree appeared to end the case as to Reingold. Actually it did not, because the issue raised by the informal counterclaim had already been heard and was under consideration. A bill and a counterclaim are different causes of suit combined in one case, and ordinarily a decree disposing of only one of them is not a final decree. General Electric Co. v. Marvel Rare Metals Co., 287 U. S. 430, 432, 53 S. Ct. 202, 77 L. Ed. 408;France & Canada S. S. Co. v. French Republic (C. C. A.) 285 F. 290. See also Kingsley v. Fall River, 280 Mass. 395, 182 N. E. 841. Compare Faulkner v. Lowell Trust Co. (Mass.) 189 N. E. 215. At any rate, a decree dismissing the plaintiff's bill against one defendant does not terminate an existing controversy in the nature of a counterclaim between that defendant and another. Notwithstanding the dismissal of the plaintiff's bill against him, the defendant Reingold remained a party to the case for the purposes of the counterclaim.

When the defendant Oil-O-Chron, Inc. discovered that, by the decree of May 10, 1932, the bill had been dismissed against Reingold, it filed on July 14, 1932, a motion to vacate that decree and a belated motion to amend its answer by setting up its counterclaim against the plaintiff and Reingold. The Superior Court allowed the amendment but declined to vacate the decree. It...