Cavanaugh v. Merrimac Hat Co.

• Decision Date: 29 January 1913
• Citation: 100 N.E. 662,213 Mass. 384
• Parties: CAVANAUGH v. MERRIMAC HAT CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

213 Mass. 384

100 N.E. 662

CAVANAUGH v. MERRIMAC HAT CO.

Supreme Judicial Court of Massachusetts, Essex.

January 29, 1913

Jan 29, 1913.

COUNSEL

Chas I. Pettingell, of Amesbury, for plaintiff.

Boutwell & Hastings and Fredk. P. Miller, all of Boston, for defendant.

OPINION

RUGG C.J.

This is an action of scire facias on a judgment in which the defendant was charged as trustee. Its liability was not made absolute thereby, but it may in this proceeding set up any matter of defense which would have been available in an action against it by its alleged creditor, the original defendant. Shawmut Commercial Paper Co. v. Cram, 212 Mass. 108, 98 N.E. 696. Prior to the service of the plaintiff's trustee writ upon it, the defendant had entered into three contracts with Dearborn Bros. & Co. defendants in the trustee action, by which the latter agreed to construct and enlarge buildings for it. The builders entered upon the performance of these contracts, but failed to complete them by reason of financial embarrassments. At their request and expense the defendant had completed the contracts. At the time of the service of the plaintiff's trustee writ upon this defendant there was due from it to the builders $392.67, provided it was not held liable in two actions brought against it by persons who claimed that it was liable for large amounts of materials furnished to the builders in the performance of the contracts. These actions are pending and undecided and if the defendant should be held liable in these actions nothing would be due to the present plaintiff.

It is a general rule, touching the liability of one summoned as trustee under the trustee process, founded upon reason and amply supported by authority, that he should be placed in no worse position than if the principal defendant had brought action against him directly. Ultimate justice between the parties must be considered upon broad and equitable grounds. The plaintiff can hold in the hands of the trustee only such sum as is finally due from him to the chief defendants after all just allowances have been made respecting their mutual rights and obligations. He is a stakeholder, having no interest in the action in which he is summoned as trustee, and as such is entitled to the protection of the court. Any defense is open to him which would be available in an action against him directly by the original defendants, his alleged creditors. Smith v. Stearns, 19 Pick. 20...