Digney v. Blanchard
| Decision Date | 10 January 1918 |
| Citation | 118 N.E. 250,229 Mass. 235 |
| Parties | DIGNEY et al. v. BLANCHARD et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior Court, Suffolk County; Jabez Fox, Judge.
Suit by Charles A. Digney and others, trustees of the Associated Trust, against Fred F. Blanchard and others, wherein defendant Blanchard demurred to the amended declaration, which demurrer was overruled, and appeals from order directing issuance of interlocutory injunction. On report to the Supreme Judicial Court. Appeal dismissed, and ordered that defendant answer over.
See, also, 226 Mass. 335, 115 N. E. 424.
Loring, Coolidge & Noble, of Boston, for plaintiffs.
Moulton, Loring & Bigelow, of Boston, for defendants.
This is a bill in equity brought under R. L. c. 159, § 3, cl. 7, to reach and apply in payment of a debt due the plaintiff from the defendant Blanchard, a right of action of Blanchard against the Fidelity Trust Company, the other defendant named in the bill. The defendant Blanchard demurred to the bill and assigned as causes of demurrer: Because the plaintiffs have a plain and adequate remedy at law; because the bill as amended does not state a case which entitles the plaintiffs to relief in equity against him; because the court has no jurisdiction in equity; and because the claim set forth in paragraph two of the bill as amended is not such a claim as is comprised within the terms of clause 7 of section 3 of chapter 159 of the act. The presiding judge in the superior court overruled the demurrer, ordered an interlocutory injunction to issue as prayed for, and reported the case to this court.
The bill alleges that, in a suit in equity brought by the plaintiffs against Blanchard to recover the loss resulting from certain breaches of trust while acting as trustee for the Associated Trust, this court on May 10, 1917, entered a final decree charging the defendant with liability and ordering him to pay forthwith to John Noble as receiver of the Associated Trust the sum of $4,571.21 with interest and costs of suit. The bill as amended alleges that the defendant has not paid the plaintiff this sum or any part thereof.
It is plain that Blanchard's liability to the plaintiffs as established by the decree, is a ‘debt’ within the meaning of the statute. H. G. Kilbourne Co. v. Standard Stamp Affixer Co., 216 Mass. 118, 103 N. E. 469.
The right which the plaintiffs seek to reach and apply is fully set forth in the second paragraph of the bill. In substance, it alleges that Blanchard has brought an action of contract against the Fidelity Trust Company to recover unliquidated damages from alleged breach of contract by the company, estimated in the sum of $60,000; that the claim arises by reason of the agreement of the company to lend to Blanchard $93,500, to be secured by a first mortgage upon certain real estate which Blanchard had an option from the owner to purchase; that the loan was to be made by the company to Blanchard when title thereto was so acquired by him; that Blanchard made demand upon the company for the amount agreed to be loaned, and offered to it a sufficient first mortgage upon the property; that the company finally refused to make the loan, and for this reason Blanchard was prevented from making the purchase and thereby lost substantial profits which would have accrued to him from the purchase; and also, that he spent much time and money in connection with the undertaking ‘for all of which, by reason of said breach of contract by the Fidelity Trust Company, he obtained no return, and suffered other and further damages.’
It is plain that the right to recover unliquidated damages against the Fidelity Trust Company, vested in Blanchard, is a right which cannot be reached to be attached or taken on execution in an action at law. Wilde v. Mahaney, 183 Mass. 455, 459, 460, 67 N. E. 337,62 L. R. A. 813;Thayer v. Southwick, 8 Gray, 229.
It remains to determine whether the right which the plaintiffs seek to reach is included in the...
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Mengel v. Justices of Superior Court
...from the granting of a preliminary injunction cannot of right be heard until there has been a trial upon the merits, Digney v. Blanchard, 229 Mass. 235, 118 N.E. 250; McCracken's Case, 251 Mass. 347, 146 N.E. 904;John Gilbert Jr. Co. v. C. M. Fauci Co. 309 Mass. 271, 34 N.E.2d 685;Driscoll ......
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...at the time the original bill was filed. On the point that such a cause of action can be reached under the statute, Digney v. Blanchard, 229 Mass. 235, 118 N. E. 250, is controlling. The appellant contends, however, that the present case is distinguishable from Digney v. Blanchard on the gr......
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