Friedberg v. Jablon

Decision Date14 September 1934
Citation287 Mass. 510,192 N.E. 49
PartiesFRIEDBERG v. JABLON et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Appeal from Superior Court, Suffolk County; Weed, Judge.

Suit in equity by Jacob Friedberg against Louis Jablon and others. From a decree dismissing the bill, plaintiff appeals, and the case is reported.

Decree affirmed.

N. Efron, of Boston, for plaintiff.

F. I. Rose, of Boston, for defendants.

RUGG, Chief Justice.

This suit in equity is brought to restrain the enforcement of a judgment in an action of contract running in favor of the defendant. DeSantis against the present plaintiff and one Leo Dane as Trustees of the Codman Park Trust, a voluntary trust association.’ The defendants are DeSantis, two attorneys at law who were counsel of record for him in that action of contract, and Ernest Bucci, who has been allowed to intervene as a party. The trial judge filed a report of material facts. So far as pertinent to the grounds of this decision, they are these: The defendant DeSantis was the plaintiff in an action of contract entered in court in May, 1928, in which the present plaintiff was the defendant. On October 16, 1930, the writ in that action was amended so as to add Leo Dane as a defendant and to describe the defendants as trustees as already set forth. On October 30, 1930, an attachment of real estate of the defendants was made in that action. That action was tried to a jury and resulted in a verdict for the plaintiff in October, 1931. Exceptions were filed by the defendants, which were dismissed in March, 1932, under the rule. Motion then was made that the case be reported. Pending the determination of that motion DeSantis executed and delivered an instrument under seal dated May 12, 1932, running to Leo Dane, covenanting and agreeing, in consideration of one dollar and of the ‘waiver of the motion that said action be reported,’ not to enforce the judgment to be entered in that case against Dane or his estate but reserving right to enforce it against the Codman Park Trust and its assets. On May 24, 1932, that case went to judgment and execution issued in common form.

In June, 1930, DeSantis, being about to leave the Commonwealth, for a valuable consideration assigned his claim against the present plaintiff and all his rights under the action at law then pending, in which he was plaintiff and the present plaintiff was the defendant, to Ernest Bucci. The same attorney who had acted for DeSantis continued to prosecute that action for Bucci. The defendant in that action, being the present plaintiff, was notified in writing of that assignment, as was also his attorney. Leo Dane, not being then a party to that action, was not notified and never had actual knowledge of that assignment. There was no evidence that Bucci knew of or authorized the instrument under seal given by DeSantis to Dane dated May 12, 1932. On March 10, 1931, the plaintiff and Dane as trustees named as defendants in the contract action gave a bond to the plaintiff DeSantis to dissolve the real estate attachment. Action was brought on that bond in June, 1932, against the surety, and subsequently the principals were joined as defendants. Those three defendants have pleaded in defence the instrument of May 12, 1932, signed by DeSantis and running to Leo Dane.

A final decree was entered dismissing the bill but without prejudice to the rights of the defendants in the action on the attachment bond to rely on the instrument signed by DeSantis under date of May 12, 1932, or to the right of Bucci to assert his claim against the Codman Park Trust and its assets. The plaintiff appealed.

The evidence is not reported. The facts stated in the report made by the trial judge must be accepted as true unless mutually inconsistent. The question is whether the decree is within the scope of the bill and rightly could have been entered on the facts. Brodrick v. O'Connor, 271 Mass. 240, 171 N. E. 479.

The assignment by DeSantis of his claim and the pending action thereon against the present plaintiff to Bucci in equity divested him of all interest therein and transferred it to Bucci. The present plaintiff and his attorney received immediate notice of that assignment. DeSantis thereafter was eithout power to do anything to affect that claim or action. His instrument of May 12, 1932, executed almost two years subsequent to the assignment was ineffective to alter or modify the rights of Bucci acquired by virtue of the assignment. Norcross v. Pease, 5 Allen, 331;Matthew Cummings Co. v. Grande, 281 Mass. 546, 550, 184...

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6 cases
  • Arwshan v. Meshaka
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • September 22, 1934
    ...Limited v. Fred Gillespie Lumber Co., 285 Mass. 10, 188 N. E. 380;Rogers v. Murch, 253 Mass. 467, 470, 471, 149 N. E. 202;Friedberg v. Jablon (Mass.) 192 N. E. 49;State of Russia v. National City Bank of New York (C. C. A.) 69 F.(2d) 44. The important question is whether the defendant can r......
  • De Santis v. Massachusetts Bonding & Ins. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • January 30, 1935
    ...Bucci had obtained by virtue of the assignment. Jones v. Witter, 13 Mass. 304, 306;St. Johns v. Charles, 105 Mass. 262, 263;Friedberg v. Jablon (Mass.) 192 N. E. 49. The defendants' exception to the admission of evidence of the assignment is overruled. The assignment was admissible to prove......
  • De Santis v. Massachusetts Bonding & Ins. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • January 30, 1935
    ...had obtained by virtue of the assignment. Jones v. Witter, 13 Mass. 304, 306; St. Johns v. Charles, 105 Mass. 262, 263; Friedberg v. Jablon (Mass.) 192 N.E. 49. defendants' exception to the admission of evidence of the assignment is overruled. The assignment was admissible to prove the inad......
  • Hurley v. Metropolitan Life Ins. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • December 1, 1936
    ... ... cannot do things which impair the cause of action without ... specific authority from his client. Friedberg v ... Jablon, 287 Mass. 510, 514, 192 N.E. 49; Butter v ... Sovrensky, 275 Mass. 88, 175 N.E. 173; Moulton v ... Bowker, 115 Mass. 36, 40,15 ... ...
  • Request a trial to view additional results

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