King v. Howes

• Decision Date: 22 May 1902
• Citation: 181 Mass. 445,63 N.E. 1062
• Parties: KING v. HOWES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

181 Mass. 445

63 N.E. 1062

KING v. HOWES.

Supreme Judicial Court of Massachusetts, Barnstable.

May 22, 1902

COUNSEL

H. P. Harriman, for plaintiff.

D. M Nickerson, Jr., for defendant.

OPINION

KNOWLTON, J.

The bill of exceptions presents the single question whether there was an error of law in the allowance of the plaintiff's motion to amend his bill. The bill was brought to prevent the foreclosure of a mortgage of personal property, and to obtain a decree for the redemption of it, on the ground that the mortgagee had refused to perform his contract, which was an important part of the consideration for the note and mortgage, and for the payment of a sum of money made when the note and mortgage were given. We may assume, upon the findings of the master, that the plaintiff would have been entitled to the relief sought if the property had remained in the hands of the defendant until the final hearing of the case. The record presents no question in regard to this. The exceptions do not show the findings of the court, but we infer that the judge found, upon satisfactory evidence, an agreement of the parties after this bill was brought that the temporary injunction should be dissolved, and the defendant be permitted to dispose of the property without interference by the plaintiff, and that he should hold himself accountable for its value at the time he took it, subject to a determination by the court of the rights of the parties in regard to it. Evidently it was in reference to some such arrangement that the bond with sureties was filed by the defendant. The sale of the property by the defendant made it impossible to give the plaintiff relief in the form in which it was originally sought. But if it was arranged that the rights and liabilities of the parties in reference to the original controversy should be determined in this suit, and it was understood that the defendant should be accountable for the value of the property, as he would have been for the property itself if it had not been sold, it was proper that the plaintiff should have a decree for the payment of a sum of money that would rightly adjust their respective claims. It might well be found that the final proceedings in the suit were for the same cause, in substance and in general effect for which the suit was brought. Although Rev. Laws, c. 173, § 48, relating to amendments, does not apply in terms to suits in equity, it does apply to amend...