Bressler v. Averbuck
| Decision Date | 05 December 1947 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | KARL BRESSLER v. SAMUEL AVERBUCK & another. |
October 7, 1947.
Present: QUA, C.
J., LUMMUS, RONAN & SPALDING, JJ.
Gaming. Equity Jurisdiction, To reach and apply equitable assets Plaintiff's clean hands.
Equity Pleading and Practice, Amendment into action at law, Bill. Words "Debt.
" A suit in equity may be maintained under G. L. (Ter. Ed.) c. 214 Section 3
(7), to reach and apply the interest of the principal defendant in a partnership to the satisfaction of an obligation of that defendant to the plaintiff under the gaming statute, G. L. (Ter. Ed.) c. 137, Section
1.
Section 3 (7), to enforce an alleged obligation of the principal defendant to the plaintiff under the gaming statute, G. L. (Ter. Ed.) c.
137, Section 1, properly was sustained because of indefiniteness of the bill where the only averments relating to such obligation were that between "the first week of April, 1946, and September 23, 1946, the [principal] defendant . . . obtained and received from the plaintiff, by playing cards and games illegally and contrary to the provisions of G.
L. (Ter. Ed.) c. 137, Section 1," a certain sum of money.
It was error to deny as a matter of law and not as a matter of discretion a motion to amend into an action at law in contract a suit in equity to reach and apply the interest of the principal defendant in a partnership to satisfy an obligation of that defendant to the plaintiff under the gaming statute, G. L. (Ter. Ed.) c. 137, Section 1.
BILL IN EQUITY, filed in the Superior Court on October 21, 1946. The case was heard on demurrer and on the plaintiff's motion to amend by Williams, J.
B. Ginsburg, for the plaintiff.
M.
J. Segal, (S.
L. Segal with him,) for the defendants.
The plaintiff seeks by this bill in equity to establish a debt under the so called gaming statute (G. L. [Ter. Ed.] c. 137 Section 1) and to reach the interest of the defendant Samuel Averbuck in a partnership [1] and apply it to the satisfaction of the debt. Samuel Averbuck, hereinafter called the defendant, demurred to the bill, and an interlocutory decree was entered on January 9, 1947, sustaining the demurrer with leave to amend within ten days. Thereafter the plaintiff filed a motion [2] to amend the suit in equity into an action at law; the motion also asked that a declaration annexed thereto, containing two counts in contract, be allowed. Subsequently, after hearing, the judge denied the motion "as a matter of law and not as a matter of discretion." The case comes here on the plaintiff's appeal from the action of the judge in denying his motion to amend and from the final decree dismissing the bill. Although the appeal from the interlocutory decree sustaining the demurrer was not taken seasonably, that decree is "open to revision" upon the appeal from the final decree. G. L. (Ter. Ed.) c. 214, Section 27. Rigs v. Sokol, 318 Mass. 337 , 339.
The grounds assigned in the demurrer are (1) failure to state a case entitling the plaintiff to equitable relief, (2) failure to set forth the facts with sufficient particularity, and (3) noncompliance with the requirements of G. L. (Ter. Ed.) c. 137, Section 1. The first and third grounds may be considered together, as they both seek to raise the question whether a cause of action grounded on G. L. (Ter. Ed.) c. 137, Section 1, can be brought on the equity side of the court. The material portions of Section 1 are as follows: "Whoever, by playing at cards, dice or other game, or by betting on the sides or hands of those gaming, loses to a person so playing or betting money or goods, and pays or delivers the same or any part thereof to the winner . . . may recover such money or the value of such goods in contract; and if he does not within three months after such loss, payment or delivery, without covin or collusion, prosecute such action with effect, any other person may sue for and recover in tort treble the value thereof" (emphasis supplied).
The defendant argues that, since the Legislature has provided a remedy by an action "in contract," the plaintiff is entitled to proceed only on the law side of the court. We cannot agree. This argument overlooks the nature of the plaintiff's pleading which is framed as a creditor's bill brought under G. L. (Ter. Ed.) c. 214, Section 3 (7), to reach and apply the defendant's interest in a partnership. The purpose of that statute was to give to those who had rights enforceable at law the right to enforce them on the equity side of the court by a proceeding which has been said to be "in the nature of an equitable trustee process." Phoenix Ins. Co. v. Abbott, 127 Mass. 558 , 560. Stockbridge v. Mixer, 215 Mass. 415 , 417, and cases cited. McCarthy v. Rogers, 295 Mass. 245 , 248. In Stockbridge v. Mixer it was said at page 418, In short a bill to reach and apply is essentially a proceeding at law supplemented by an equitable attachment. The proceeding here was none the less "in contract" because the plaintiff sought an attachment in equity. We find nothing in either the language or the purpose of the gaming statute that manifests an intention to withhold from one seeking to recover money under it the remedy provided in G. L. (Ter. Ed.) c. 214, Section 3 (7). See Rice v. Winslow, 182 Mass. 273 , 275-276. Nor is the statute last mentioned to be construed as furnishing a remedy which may be invoked only in aid of common law rights as distinguished from those created by statute.
Properly no contention is made that the alleged interest of the defendant in the partnership may not be reached. The statute expressly provides that the "interest of the defendant in partnership property may be reached and applied." Gay v. Ray, 195 Mass. 8 , 15. The statute, however, provides that such interest may be reached and applied only "in payment of the plaintiff's debt."
What constitutes a debt within the meaning of this statute has been discussed in several decisions. See Woodbury v. Sparrell Print, 187 Mass. 426, 428-429; H. J. Kilbourne Co. v. Standard Stamp Affixer Co. 216 Mass. 118; New England Oil Refining Co. v. Canada Mexico Oil Co. Ltd. 274 Mass. 191, 202; Garsson v. American Diesel Engine Corp. 310 Mass. 618 , 620-623. An illuminating discussion by Rugg, C.J., will be found in the Kilbourne case cited above. In the light of these decisions, we are of opinion that the obligation which the plaintiff is seeking to enforce here is a "debt" within the intendment of the statute and that the plaintiff was entitled to bring a bill to reach and apply under G. L. (Ter. Ed.) c. 214, Section 3 (7), to enforce it.
The defence of unclean hands based on the illegal conduct of the plaintiff cannot prevail. Obviously this defence is not open to a defendant in a proceeding under G. L. (Ter. Ed.) c. 137, Section 1, the object of which is to discourage gambling by giving the loser the right to recover back his losses despite his violation of law. See Rice v. Winslow, 182 Mass. 273, 275.
We think, however, that the demurrer was rightly sustained on the ground that the allegations of the bill were too indefinite. It is an elementary rule of equity pleading that the bill must contain a clear and precise statement of all the material facts upon which the plaintiff's right to relief depends in order that the defendant may be informed of the specific nature of the claim against him. Carson v. Gikas, 321 Mass. 468 , 469-470, and cases cited. The bill here plainly violates this rule. The only portion of the bill that relates to the alleged debt is paragraph 1, which reads as follows: "Between the first week of April, 1946, and September 23, 1946, the defendant, Samuel Averbuck, obtained and received from the plaintiff, by playing cards and games, illegally and contrary to the provisions of G. L. (Ter. Ed.) c. 137, Section 1, the amount of $28,050." The dates and amounts of the various losses are not set forth. There is merely the bald assertion that during the period specified the defendant received $28,050 from the plaintiff by playing cards and games in violation of the statute. This did not adequately inform the defendant of the case he was called upon to meet.
It remains to consider the plaintiff's appeal from the action of the judge denying the plaintiff's motion to amend from equity into law. Although this ruling was not embodied in a decree it was in substance an...
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