Carmel Credit Union v. Lesser
Decision Date | 28 June 1962 |
Citation | 344 Mass. 623,183 N.E.2d 725 |
Parties | CARMEL CREDIT UNION v. Louis LESSER. CARMEL CREDIT UNION v. Dorothy LESSER. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Benjamin Korolick, Boston, for plaintiff.
Sidney J. Dockser, Boston, for defendants.
Before WILKINS, C. J., and SPALDING, WILLIAMS, CUTTER and KIRK, JJ.
These are two similar actions of tort in each of which the plaintiff has appealed from the allowance of the defendant's motion to dismiss. Since the pleadings in the cases are substantially the same, they have been consolidated for purposes of appeal and are presented to this court on the record in the case against Louis Lesser, 'the decision on appeal [to] be applicable to each case.'
The declaration alleged 'that the defendant by fraudulently representing to the plaintiff that he was not indebted to any other credit union, bank, or loan agency, either as maker, co-maker, or endorser, induced the plaintiff to lend him the sum of Nine Hundred ($900) Dollars, whereas the defendant was then indebted to other credit unions, banks, or loan agencies, either as maker, co-maker, or endorser, as the defendant then knew, and the defendant has since been adjudicated a bankrupt, as a result thereof the plaintiff has been damaged to the extent of the balance due on its loan.' The defendant's motion to dismiss was as follows:
We place no reliance on the defendant's characterization of the matter appearing in the record as a 'Motion to Dismiss.' E. S. Parks Shellac Co. v. Jones, 265 Mass. 108, 110, 163 N.E. 883. The motion should be treated as a demurrer, since it raises a question of pleading rather than of process. See Tyler v. Boot & Shoe Wkrs. Union, 285 Mass. 54, 55, 188 N.E. 509. It is not an answer in avoidance it purports merely to set forth the consequences which follow from the allegation in the plaintiff's declaration that 'the defendant has since been adjudicated a bankrupt.' The defendant contends that the plaintiff cannot maintain its alleged cause of action because of the admission in its declaration of the defendant's adjudication in bankruptcy and its failure to allege facts which would avoid the effect of a discharge under § 17, sub. a of the Bankruptcy Act (11 U.S.C. [1958] § 35, sub. a [11 U.S.C.A. § 35, sub. a]). The fallacy of the defendant's position is that an...
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...681 (1952). SeeCanton Lumber & Supplies, Inc. v. MacNevin, 354 Mass. 563, 564, 238 N.E.2d 879 (1968) ; Carmel Credit Union v. Lesser, 344 Mass. 623, 625, 183 N.E.2d 725 (1962) ; E.S. Parks Shellac Co. v. Harris, 237 Mass. 312, 317, 129 N.E. 617 (1921) ; Wexler v. Davis, 286 Mass. 142, 144, ......
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...c. 491, § 1. Cf. Mass.R.Civ.P. 56, --- Mass. --- (1974). It should have been treated as a demurrer. Carmel Credit Union v. Lesser, 344 Mass. 623, 624--625, 183 N.E.2d 725 (1962), and cases cited. No objection appears to have been made on this ground, however, and the point is not argued by ......