Bordonaro v. Vandenkerckhaven

• Decision Date: 08 January 1948
• Citation: 76 N.E.2d 755,322 Mass. 278
• Parties: ANGELO BORDONARO, trustee, v. WILLIAM VANDENKERCKHAVEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

322 Mass. 278

76 N.E.2d 755

ANGELO BORDONARO, trustee, v. WILLIAM VANDENKERCKHAVEN.

Supreme Judicial Court of Massachusetts, Suffolk.

January 8, 1948

November 4, 1947.

Present: QUA, C.

J., DOLAN, WILKINS SPALDING, & WILLIAMS, JJ.

Waiver. Equity Pleading and Practice, Counterclaim, Waiver.

In a suit in equity seeking to have the defendant ordered to discharge an alleged lien on the plaintiff's real estate arising from a conditional sale of a stoker and seeking damages for breach of the sale contract, allegations in the defendant's answer that the plaintiff owed him a balance of the purchase price of the stoker and certain fees and expenses in accordance with the contract constituted a counterclaim.

Dismissal of the bill in a suit in equity without disposing of a counterclaim left the counterclaim unaffected.

In a suit in equity in which the bill was dismissed without appeal by the plaintiff following one hearing, and a counterclaim by the defendant was heard at a subsequent hearing, the defendant by failing to make any contention at the later hearing that certain issues had become res judicata by reason of the previous hearing and decree, waived his right to prevent a retrial of those issues at the later hearing and was not entitled to raise the point of res judicata for the first time in this court on appeal from a decree dismissing the counterclaim.

BILL IN EQUITY filed in the Superior Court on September 18, 1944. The defendant appealed from a decree entered by order of Kirk, J.

In this court the case was submitted on briefs. L. Kobrin, for the defendant.

J. A. Merenda &amp J.

J. Twitchell, for the plaintiff.

SPALDING, J. A recital of the pleadings in some detail is necessary to a proper understanding of the issues here presented. The plaintiff in his amended bill in substance alleged that he owned four parcels of real estate in Medford; that on September 25, 1941, he entered into a conditional sale contract with the defendant "for the installation of certain stoker furnaces in the said premises" for which he agreed to pay the sum of $1,187; that of this amount $620 was paid in cash and the balance of $567 was to be paid over a period of twelve months; that the defendant filed a notice of the conditional sale contract in the registry of deeds at Cambridge which constituted a lien on the plaintiff's property; that payments in accordance with the contract were made by the plaintiff until he discovered that the stokers were not as guaranteed by the contract; and that by reason of this breach of contract on the part of the defendant it became necessary for the plaintiff to replace two of the stokers with others at a cost of $960, after having expended $225 "to correct . . . [their] shortcomings." The bill prayed that the defendant be required to discharge the lien on the plaintiff's real estate, and that the defendant be ordered to pay to the plaintiff the sum of $1,185 to cover the cost of repairing, and ultimately replacing, two of the stokers.

The defendant in his answer asserted that the plaintiff had not lived up to the contract; that at the time of the last payment made by the plaintiff (June 3, 1942) he had expressed complete satisfaction with the stokers; that if the stokers were inadequate it was due to improper use of them by the plaintiff; and that in removing the stokers without informing the defendant of their whereabouts the plaintiff had converted them. The answer also contained a counterclaim, although not designated as such, which alleged that the plaintiff owed the defendant a balance of $485.25 with interest and "that this request for the payment of same is not to be construed in any manner as a waiver of the right, title and interest of the . . . [defendant] to the stokers in question." The plaintiff's original answer to this counterclaim does not appear in the record.

The judge before whom the case was tried entered a final decree dismissing the bill with costs to the defendant. The decree, however, did not dispose of the counterclaim. There was no report of the evidence nor were there any findings of fact. The plaintiff did not appeal.

On January 24, 1946, nearly three months after the entry of the decree dismissing the bill, the defendant moved "to amend his bill in the matter of a set-off" by alleging that the plaintiff owed him "an amount for reasonable attorney's fees and disbursements and expenses of collection in accordance with paragraph 6 of the conditional sale agreement in question." This amendment was allowed by the court. The plaintiff then filed a motion in which he asked that he be allowed to amend his answer to the defendant's "cross bill." In this amended answer, which was allowed by the court, the plaintiff stated that he did not owe the defendant anything due to the fact that the stokers installed by the defendant were not as represented in the agreement.

The issues raised by the amended counterclaim and answer were heard before another judge who at the defendant's request, pursuant to G. L. (Ter. Ed.) c. 214, Section 23, reported the material facts found by him. The evidence is not reported. These findings may be summarized as follows: The plaintiff, who owned four apartment houses, entered into a conditional sale contract with the defendant whereby the latter was to install four "`Original Pocahontas' Stokers, Model HB30, at $245 each," in the plaintiff's apartment houses. With installation and finance charges the total price was to be $1,187. Four stokers were installed in the plaintiff's apartment houses by the defendant, and after the down payments required by the...