Carr v. Leahy

• Decision Date: 19 May 1914
• Parties: CARR et al. v. LEAHY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

217 Mass. 438

105 N.E. 445

CARR et al. v. LEAHY.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1914

COUNSEL

Lyon Weyburn, Chas. A. Digney, and Henry W. Packer, all of Boston and Warren H. Butler, of Danvers, for plaintiffs.

John P Leahy, of Boston, pro se.

OPINION

HAMMOND J.

The rule upon which the decision of this case depends is well settled. It is stated by Story, J., in Duvall v. Craig, 2 Wheat. 45, 46 (4 L.Ed. 180), as follows:

'A trustee, merely as such, is, in general, only suable in equity. But if he chooses to bind himself by a personal covenant, he is liable at law for a breach thereof in the same manner as any other person, although he describes himself as covenanting as trustee; for, in such case, the covenant binds him personally, and the addition of the words 'as Trustee' is but a matter of description to show the character in which he acts for his own protection, and in no degree affects the rights or remedies of the other party. The authorities are very elaborate on this subject.'

'If a trustee contracting for the benefit of a trust wants to protect himself from individual liability on the contract, he must stipulate that he is not to be personally responsible but that the other party is to look solely to the trust estate.' Woods, J., in Taylor v. Davis, 110 U.S. 330, 335, 4 S.Ct. 147, 150 (28 L.Ed. 163).

This doctrine has been recognized by this court. Hussey v. Arnold, 185, Mass. 202, 70 N.E. 87; Dunham v. Blood, 207 Mass. 512, 513, 93 N.E. 804. In Hussey v. Arnold, Knowlton, C.J., says (185 Mass. 203, 70 N.E. 87):

'Ordinarily, in the absence of special limitations, trustees bind themselves personally by their contracts with third persons. Actions at law upon such contracts must be brought against them, and judgments run against them personally.'

See, also, the remarks of Holmes, J., in Odd Fellows' Hall Association v. McAllister, 153 Mass. 292, at page 297, 26 N.E. 862, 11 L. R. A. 172.

In the present case there is no stipulation express or implied that the trustee shall not be personally liable, and there is therefore nothing to take it out of the general rule. He is personally held.

It is contended by him that even if he is held the liability extends only to the sum of $2,500. But we cannot agree with this contention. He guarantees 'the payment of money specifically set forth in' the instrument to which the guaranty is annexed. The 'money...