Kirby v. Donovan

• Decision Date: 12 September 1917
• Citation: 117 N.E. 241,228 Mass. 86
• Parties: KIRBY v. DONOVAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

228 Mass. 86

117 N.E. 241

KIRBY

v.DONOVAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 12, 1917.

Appeal from Supreme Judicial Court, Suffolk County; John C. Crosby, Judge.

Bill for an injunction by William Kirby against Samuel B. Donovan and others. From a decree of a single justice of the Supreme Judicial Court dismissing the bill, complainant appeals. Affirmed.

See, also, 223 Mass. 6, 111 N. E. 607.

Bergson & Ford, Harry Bergson, and Wm. A. Parker, all of Boston, for appellant.

Chas. W. Bartlett, Jos. W. Bartlett, Fredk.

E. Jennings, Arthur T. Smith, and Michael H. Sullivan, all of Boston, for appellees.

LORING, J.

This is an appeal from a decree dismissing a bill brought to enjoin the defendant Samuel B. Donovan from enforcing a bond to dissolve an injunction signed by the plaintiff, Kirby, as one of the principals and by the New England Casualty Company as surety.

The facts are these: In November, 1912, the defendant Samuel B. Donovan brought a bill in equity in the superior court alleging that he was entitled to a one-quarter interest in the profits of a real estate partnership for buying, developing, and selling four specific parcels of land therein described; that Joseph A. Donovan (brother of Samuel B. Donovan, the plaintiff in that bill) managed the affairs of the partnership, receiving all moneys due it and paying all obligations incurred by it; that title to the four parcels was originally taken by Joseph; that Joseph Kept the title to one parcel throughout, but that he conveyed the title to the other three to Kirby; that the plaintiff's brother (Joseph A. Donovan) was entitled to a one-quarter interest and that Kirby was entitled to the other one-half interest in the profits of the partnership. It was further alleged that the plaintiff's one-quarter interest in one of the four parcels was assigned by him to his wife and by a later amendment she was made a party plaintiff. The bill sought an accounting for the one-quarter interest owned by the plaintiff (Samuel) in the three parcels and that owned by his wife in the fourth parcel. When the bill was filed an ‘ad interim’ injunction issued restraining Joseph and Kirby from parting with the title to any one of these parcels of the land. By its terms the ‘ad interim’ injunction was to be continued until a stipulation was filed by the defendants. In place of filing a stipulation the defendants (Kirby and Joseph A. Donovan with the New England Casualty Company as surety) gave the bond here in question to dissolve the injunction. The condition of the bond was for payment ‘to the complainants in said bill in equity’ of the amount of any decree which he may recover in said suit within 30 days after the entry thereof. The case was sent to a master. The main issue originally tried before the master was the extent of the partnership agreement. At the original hearings before the master, Samuel's one-quarter interest in the parcel which was the subject of the assignment to his wife was admitted, but both Joseph and Kirby denied his interest in the other three parcels of land. The master filed a report in favor of the plaintiffs establishing the plaintiffs' right to a quarter interest in all four parcels of land, but he did not find the amount of the profits to which they were entitled. Thereupon the case was recommitted to the master, and by his supplemental report the master found that Samuel's wife would have received as her share of the profits of the parcel of land to which she was entitled ‘if the defendant Joseph A. Donovan had fully performed his contract with her or for her benefit’ $512.81 beyond the amount that she had received. With respect to the other three parcels he made a similar finding in favor of Samuel in the sum of $6,782.59. Later a final decree was entered dismissing the bill as to the defendant Kirby and directing the defendant Joseph A. Donovan to pay to the two plaintiffs respectively the two sums mentioned above. No appeal from this decree was taken by Joseph. Nor did Kirby take an appeal in Joseph's name on the ground that as a person made liable if Joseph was liable he had a right to be heard on Joseph's liability. Kirby did undertake to take an appeal as a party to the suit. That appeal was dismissed in 223 Mass. 6, 111 N. E. 607. On his appeal being dismissed (as the result of the decision in Donovan v. Donovan, 223 Mass. 6, 111 N. E. 607) Kirby brought in the Supreme Judicial Court the bill in equity now before us. By this bill he seeks to have Joseph enjoined from enforcing the bond given to dissolve the temporary injunction on two grounds: First, on the ground that he had an equitable defense to the bond in that the surety (the New England Casualty Company) and an equitable defense to it. This is based on allegations (contained in the bill) that to induce the casualty company to sign the bond he (Kirby) had deposited with it securities under an agreement by which the casualty company could reimburse itself out of those securities for any sum which it was forced to pay upon the bond, and that by reason of this deposit of securities he had a right to insist upon the casualty company setting up its defense and so to have it enjoined from paying the bond. The second ground on which Kirby undertook to enjoin Samuel from enforcing the bond was that the decree in the superior court (by which Joseph was directed to pay to the plaintiff the sum of $6,782.59) was collusively procured through a conspiracy between Joseph and Samuel. At the argument in this court Kirby set up an additional and third ground, namely, that the superior court had no jurisdiction to make the final decree for the payment to Samuel and his wife of the sums it directed Joseph to pay to them.

[1] 1. We take up the last contention. This contention is founded on the proposition that the bill brought in the superior court by Samuel was a bill to reach and apply the interest of Kirby and Joseph in the partnership real estate in satisfaction of a claim for unliquidated damages which he (Samuel) had against Joseph for breach of his contract to give him a one-quarter interest in the profits of the partnership covering the four parcels of land in question. And he relies upon the decision in Killbourne v. Standard Stamp Affixer, 216 Mass. 118, 103 N. E. 469, in which it was decided that a bill to reach and apply does not lie to enforce a claim for breach of a contract where the damages are unliquidated. He contends further that if the bill as originally brought was not a bill to reach and apply it became so by the amendment which was made by Samuel on the coming in of the...