Jodoin v. Baroody

• Decision Date: 01 June 1948
• Citation: 59 A.2d 343
• Parties: JODOIN v. BAROODY et al.
• Court: New Hampshire Supreme Court

59 A.2d 343

JODOIN

v.BAROODY et al.

Supreme Court of New Hampshire.

June 1, 1948.

Exceptions from Superior Court, Hillsborough and Rockingham Counties; Wescott and Leahy, Judges.

Action at law by Andrew J. Jodoin, administrator of estate of Joseph A. Jodoin, against John T. Baroody and another arising out of automobile accident, wherein judgment was entered for plaintiff, consolidated with bill in equity in aid of judgment recovered in the action at law against same defendant and another. Named defendant's motion to set aside judgment recovered against him in the action at law was granted and a decree was entered dismissing the bill in equity in aid of the judgment in the action at law, and the plaintiff brings exceptions.

Exceptions overruled.

Bill in Equity in aid of an action at law, on a judgment recovered as the result of an automobile accident by the plaintiff against the defendant John T. Baroody in Rockingham County Superior Court. The plaintiff attached a bank account in Merchants National Bank of Manchester and other personal property as belonging to John, which property is now claimed by the defendant Adele Baroody. A trial by the Court, Wescott, J., who has transferred this case, resulted in a decree dismissing the bill. The plaintiff duly excepted to the decree on the ground that it was contrary to the law and the evidence and the weight of the evidence. Subsequently a hearing was held in Rockingham County on the motion of the defendant John to set aside the judgment recovered against him in the action at law on the grounds of accident, mistake and misfortune under R.L. c. 398, § 2. This motion was granted by Leahy, J. (by whom this case was transferred) subject to the plaintiff's exception. For convenience the issues raised in both cases have been consolidated under a single docket number.

It appears that after the defendant was sued in the action at law he turned the writ over to the company for which he worked, and on whose business he was at the time of the accident, at the request of the manager. As a result of this an insurance adjuster came to see the defendant, who he assumed would take care of the matter. Thereafter the defendant says he heard nothing until he received notice of a suit against him upon the judgment recovered in the accident case. There was no evidence to show that he actually had received any word concerning the case until he was sued upon the judgment. With reference to the question of the ownership of the property, it appears that Adele bought the business from the proceeds of the sale of another store owned by her and took a bill of sale in her name. She filed a certificate of trade name with the Secretary of State under R.L. c. 186, § 1. She employed her brother John to run the store, paid him a salary and left the entire management of the business to him. There was no evidence that John at any time put any money into the concern or acquired any share of it. He kept the books, signed all returns and other papers relative to carrying on the store and in general conducted it, as he claims, under his sister's authority.

There is no evidence that the plaintiff or his intestate had any dealings with the defendants or their store or that they were known to each other before the matter here in issue arose. Further facts appear in the opinion.

Maurice A. Broderick, of Manchester, for plaintiff.

J. Morton Rosenblum, of Manchester, for defendants.

BLANDIN, Justice.

The plaintiff's exceptions are overruled. In regard to his first contention, that the Court erred in granting the defendant's motion to strike off the default and judgment, it is sufficient to say that the record warranted a finding that the defendant John was justified in assuming his employer would undertake his defense. The action of the Trial Justice being well within his discretion (see R.L. c. 398, § 2; Superior Court Rule 8, 93 N.H. Appendix) presents no further question for us to consider.

Lancaster National Bank v. Whitefield Savings Bank and Trust Company, 92 N.H. 337, 30 A.2d 473. See also Lewellyn v. Follansbee, 94 N.H. 111, 114, 47 A.2d 572, and authorities cited.

We turn now to the plaintiff's claim that the Court was bound as a matter of law to enter a decree in his favor, based on principles of estoppel and the rule in Harlow v. Leclair, 82 N.H. 506, 136 A. 128, 50 A.L.R. 973. In answer to these contentions it is sufficient to say that there is nothing in the conflicting evidence which the record discloses on the question of ownership of the property to compel a finding for the plaintiff. Neither estoppel nor Harlow v. Leclair, supra, apply here. There is no evidence that the plaintiff or his intestate ever relied to their prejudice on any representations of either of the defendants respecting ownership and therefore there is no estoppel. Bosen v. Larrabee, 91 N.H. 492, 23 A.2d 331; Hening Digest Vol. I, Estoppel, p. 571. The doctrine of the Harlow case does not apply to extra judicial...