Franklin v. North Weymouth Co-Operative Bank

Decision Date27 June 1933
Citation186 N.E. 641,283 Mass. 275
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Appeal from Superior Court, Norfolk County; C. H. Donahue, Judge.

Suit by Catherine Franklin against North Weymouth Co-operative Bank and another. From an interlocutory decree allowing the sufficiency of defendants' plea and sustaining each demurrer, and from a final decree dismissing the bill, plaintiff appeals.


A. M. Beale, of Boston, for appellant.

W. J. Holbrook, of Boston, for appellee North Weymouth Co-op. Bank.

J. J. McAnarney and H. T. Patten, both of Quincy, for appellee Jackson.

RUGG, Chief Justice.

This suit in equity was filed on October 24, 1929. The allegations of the amended bill, so far as material to the grounds of this decision, in substance are these: The plaintiff on February 7, 1927, agreed in writing to purchase of Edith I. Jackson (hereafter called the defendant) land with buildings thereon then in process of construction. On April 4, 1927, the defendant conveyed the property to the plaintiff ‘subject to a mortgage originally written for $8,000’ and held by the North Weymouth Co-operative Bank (hereafter called the bank). The plaintiff paid a substantial price and accepted the deed. The mortgage was in the statutory form, with power of sale, and was security for a construction loan for $8,000. As basis for this construction loan the defendant entered into a contract with the bank contained in an application for loan made by the defendant and certain plans and specifications showing the building to be erected, which were examined by officers of the bank, and in by-laws, rules and regulations of the bank, one of which was that officers of the bank should determine the question of fact whether the building had reached such state of completion as to release the successive payments agreed to be made by the bank. When the plaintiff took title to the property ‘the building was not completed and has never been completed’ by the defendant and consequently the defendant ‘never became entitled to all the money which the bank agreed to advance.’ Numerous specifications of defects in construction and workmanship of the building are set forth in the bill, together will costs to the plaintiff of remedying the same, of most of which the defendant and the bank had notice. It is alleged that it would be inequitable for the defendant to receive from the bank any part of the last payment of $1,000 on the construction mortgage, unless the plaintiff is first paid or has credit for the expenses due and to become due on account of remedying the defects as specified. The prayers of the bill are that it be determined how much the plaintiff has expended for the benefit of the defendant to put the buildings in such condition that the money on the construction loan will be due to the defendant from the bank, that such amount be deducted from the mortgage and not paid to the defendant, that further credits be given to the plaintiff for specified expenses necessary to render the buildings usable, and for general relief.

The defendant filed a plea setting out that the plaintiff brought an action at law against her in which judgment was rendered for the defendant on April 5, 1929. A copy of the declaration in that action is annexed to the plea whereby it appears that the cause of action alleged was, in one count, breach of the agreement of February 7, 1927, between the parties, taking of title by the plaintiff to the property therein described before completion of the buildings and failure by the defendant to complete the same as agreed in several specified particulars; in another count in tort, false and fraudulent representations by the defendant as inducements to the plaintiff to enter into said contract; and in a third count acceptance by the plaintiff of deed under said contract, being induced thereto through false and fraudulent representations by the defendant as to most of the matters set forth in the present bill respecting defects in workmanship and construction of the building on the land in question. The defendant in that action answered by general denial, trial was had, finding made for the defendant, and ultimately judgment was entered in her favor. The defendant also filed a demurrer to the bill in the case at bar, assigning among others as grounds that the bill set out no cause of action and want of equity. The bank demurred, assigning among others as causes want of equity and that no contractual relationship was set out between it and the plaintiff. An interlocutory decree was entered allowing the sufficiency of the plea and sustaining each demurrer on the grounds above recited. Final decree was entered dismissing the bill. Appeals by the plaintiff from each decree bring the case here.

The plea filed by the defendant set out a single fact or point which, if established, will defeat the suit as a whole or some particular aspect of it. That is the essential requisite of a plea. Reilly v. Selectmen of Blackstone, 266 Mass. 503, 507, 165 N. E. 660, and cases cited. The substance of the plea is res judicata touching all matters set out in the bill between the plaintiff and the defendant. That defence is appropriate for a plea in equity. Eastman Marble Co. v. Vermont Marble Co., 236 Mass. 138, 148, 128 N. E. 177. As between the plaintiff and defendant, the action at law covered the same issues as those raised by the present bill. This is manifest upon comparison of the pleadings in the two proceedings. Both are founded on their agreement of February 7, 1927, and the deed pursuant thereto of April 4, 1927, and the failure of the defendant to perform the stipulations in connection therewith. While there are some relatively small differences between the specifications of defaults by the defendant in the present bill and those in the declaration in the action at law, it is clear that both grow out of the same cause of action. All the damages accruing to the plaintiff out of that cause of action were or ought to have been alleged and assessed in the action at law. Such a cause of action cannot be split and made the subject of several proceedings in the courts. Canning v. Shippee, 246 Mass. 338, 141 N. E. 79, and cases collected. The familiar statement of the doctrine of res judicata, to the effect that ‘a judgment on its merits in a former action between the same parties is a bar, as to every issue which in fact was or which in law might have been litigated, to later action upon the same cause,’ embraces that principle. Cote v. New England Navigation Co., 213 Mass. 177, 180, 99 N. E. 972;Magaw v. Beals, 272 Mass. 334, 338, 172 N. E. 347. The plaintiff cannot avoid the force of res judicata by varying the form or phrases contained in her declaration in the earlier action in the allegations of her present bill when it...

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