Costello v. Tasker

• Decision Date: 26 May 1917
• Citation: 116 N.E. 573,227 Mass. 220
• Parties: COSTELLO et al. v. TASKER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

227 Mass. 220

116 N.E. 573

COSTELLO et al.

v.TASKER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 26, 1917.

Appeal from Superior Court, Suffolk County; Charles F. Jenney, Judge.

Bill by Katherine H. Costello and others against Hymen Tasker and another. Decree dismissing the bill, and plaintiffs appeal. Affirmed.Chas. J. Martell, of Boston, for plaintiffs.

Elisha Greenhood, of Boston, for defendants.

BRALEY, J.

[5] It is elementary law that the office of an answer is to controvert the facts or some of them alleged in the bill, and to set up other facts upon which the rights of the defendant depend in the subject matter of the suit. While exceptions to its insufficiency can no longer be alleged, it would have been on the record appropriate practice for the plaintiffs to have moved to take the bill for confessed because each defendant filed only a general denial. Pearson v. Treadwell, 179 Mass. 462, 467, 468, 61 N. E. 44;Reed v. Cumberland Mut. Fire Ins. Co., 36 N. J. Eq. 393;McTwiggan v. Hunter, 19 R. I. 68, 31 Atl. 693;Whittemore v. Patten (C.C.) 81 Fed. 527. The rule even where the oath is waived or rendered unnecessary by statute is that the plaintiff is entitled to discovery as to the matters charged in the bill, and if the defendant answers he must answer fully except as to matters which are ‘purely scandalous or immaterial or irrelevant,’ or if being wholly ignorant avers that he cannot further answer either as to his knowledge or belief. The answer also may admit the allegations as stated in the bill with or without averring additional facts, thus making a case for the decision of the court. But if all the facts are not admitted the plaintiff by a replication may join issue which completes the pleadings. Mazzaredo v. Maitland, 3 Madd. 66; Utica Bank v. Messereau, 7 Paige (N. Y.) 517;King v. Ray, 11 Paige (N. Y.) 235; Morris v. Parker, 3 Johns. Ch. (N. Y.) 297; Warren v. Warren, 30 Vt. 530;Carr v. Bosworth, 68 Iowa, 669, 27 N. W. 913. It is hardly necessary to add that a general denial of each and every paragraph or item while entirely suitable as an answer to a count upon an account annexed, cannot be considered a compliance with the requirements of an answer to a bill in equity. Moors v. Moors, 17 N. H. 481; Woods v. Morrell, 1 John. Ch. (N. Y.) 103, 107.

[7][8] The plaintiff however having waived the insufficiency by joining issue, we consider the case on the merits. Slater v. Maxwell, 6 Wall. 268, 18 L. Ed. 796. The plaintiffs as vendors engaged to convey a good and clear title to the parcel in question by a sufficient deed, and if they were unable to perform the contract, the default of the defendants, the purchasers, at the time and place named for performance is immaterial. Noyes v. Johnson, 139 Mass. 436, 31 N. E. 767;First African Soc. v. Brown, 147 Mass. 296, 17 N. E. 549;Mansfield v. Wiles, 221 Mass. 75, 81, 82, 83, 108 N. E. 901.If the minor Richard W. Costello had not died after the license to sell his undivided one quarter interest had been obtained, a good title could have been tendered. But by his death before the sale could be consummated the guardianship terminated,...