Krogman v. Rice Brothers Co.
Decision Date | 21 April 1922 |
Citation | 241 Mass. 295 |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Parties | HAROLD W. KROGMAN v. RICE BROTHERS COMPANY & trustee. |
December 1, 1921.
Present: RUGG, C.
J., BRALEY, CROSBY CARROLL, & JENNEY, JJ.
Trustee Process. Contract, Performance and breach. Practice, Civil, Trustee process: trial by jury.
In an action by trustee process, the burden is upon the plaintiff to prove that the trustee should be charged.
Money cannot be attached by trustee process unless, when the writ is served upon the alleged trustee, the money is due from him to the defendant absolutely and without any contingency except that of time.
In an action by trustee process, the question, whether the trustee is chargeable, must be determined upon the facts as they exist when the writ is served upon him and he should not be charged upon proof merely that eventually something may be due, and that it is probable that some amount may become payable, from him to the defendant.
At the hearing in an action by trustee process of the question, whether an alleged trustee should be charged, it appeared that the defendant was under contract to build two ships for the alleged trustee, both of which were to be delivered before the date when the writ was served upon the alleged trustee that the first ship was delivered late but nine days before the service of the writ, and that there was nothing due to the defendant on account thereof when the writ was served that the second ship was unfinished when the writ was served and was not delivered until three months later; that the contract provided for the payment of fixed amounts within ten, thirty, sixty, ninety and one hundred and twenty days after the completion of the first ship; that these payments were to be made upon fulfilment of certain conditions relating to insurance, time of construction, freedom from liens and quality of steel; that the trustee was entitled to damages by reason of the delay of the defendant in completing the second ship; that the contract, still in force in these particulars, provided that no payments should be required "until and unless the builders shall offer reasonable evidence that all reasonable claims for work, labor and material such as might constitute a lien on said vessels or either of them have first been paid and satisfied in full," and that no such evidence had been furnished to the trustee by the defendant. Held, that an order discharging the trustee was warranted.
No exception will be sustained to a refusal by a judge, at the hearing upon the question whether an alleged trustee shall be charged in trustee process, to find facts in accordance with the testimony of a witness for the plaintiff.
At the hearing above described, statements contained in a bill in equity, signed, sworn to and filed by an officer of the defendant who was not a witness at the hearing, after the service of the writ in trustee process, which statements tended to refute facts alleged in the answer of the trustee, and also evidence relating to an alleged waiver by the defendant after the date of the service of the trustee process of requirements in the contract of certificates of freedom from "claims, unpaid bills or liens," properly were excluded.
In the action above described, the plaintiff moved that there be framed for trial by jury an issue, "how much, if anything," was due from the alleged trustee to the defendant at the time of the service of the writ upon the alleged trustee. The motion was denied. A judge who heard the motion indorsed thereon,
Held, that (1) The action of the judge must be considered as limited to the motion before him;
(2) The issue stated in the motion was too broad; (3) The plaintiff failed to ask for issues to which he was entitled;
(4) The motion properly was denied.
CONTRACT, with a declaration in four counts covering claims amounting to $66,581.50, the action being begun by writ in trustee process naming Commonwealth Fisheries Company as trustee. Writ dated July 25, 1919.
Material allegations in an amended answer filed by the alleged trustee on February 18, 1920, are described in the opinion. The plaintiff on March 20, 1920, filed a statement containing the following "further facts on the question of charging the trustee:"
On July 20, 1920, the plaintiff filed a motion "that on the trustee's answer, the additional allegations, the deposition taken in support thereof and any further evidence that may be submitted at the time of trial, in accordance with the provisions of chapter 189, section 16, the following issues of fact be tried by jury:
The motion was heard by Wait, J., who indorsed thereon, and reported the matter to this court "upon the facts and questions embodied in the plaintiff's bill of exceptions, allowed" by him relating thereto. In that bill is the statement that the judge, "after hearing and examining said allegations and a deposition thereon denied any jury issues on the question of charging the trustee."
The question, whether the trustee should be charged, afterwards was heard by McLaughlin, J. Material evidence and exceptions saved by the plaintiff are described in the opinion. By order of the judge, the trustee was discharged; and the plaintiff alleged exceptions.
C. S. Tilden, for the plaintiff.
C.
Bosson, for the defendant.
On July 21, 1919, the plaintiff began an action of contract against Rice Brothers Company a corporation organized under the law of Maine. Service was made upon the defendant by publication only and it has not "appeared except specially contesting jurisdiction." Commonwealth Fisheries Company, a Massachusetts corporation hereinafter called the Fisheries Company, was summoned as trustee, and on October 29, 1919, a special precept was issued by which the plaintiff attempted further attachment of the defendant's property in possession of the Fisheries Company. The plaintiff, however, does not now urge that jurisdiction has been acquired except as to property attached upon the original writ. Roberts v. Anheuser Busch Brewing Assoc. 215 Mass. 341 .
The plaintiff contends that the Fisheries Company should be charged as trustee of the defendant, and the exceptions wholly concern that question and incidental proceedings. This contention is based upon the trustee's amended answer and the evidence admitted in support of the plaintiff's allegations of facts neither stated nor denied by the trustee. That answer included all facts disclosed by the original answer of the trustee and by the interrogatories to the trustee and its answers thereto.
From the amended answer the following facts appear: In March, 1917, a contract theretofore made between the defendant and Alden A. Mills was assigned to the Fisheries Company, and assumed by it, and the defendant accepted that company as a party to the contract in place of Mills. The original contract provided for the building by the defendant of two seagoing vessels, one on or before December 1, 1917, and the other on or before April 1, 1918. The first vessel was named the Louis M. Winslow, and is hereinafter designated as the Winslow. It was not delivered to the trustee until July 16, 1919. Simultaneously with its delivery, by written agreement, the defendant and the trustee adjusted all material differences relating to that vessel. It is not contended that the trustee should be charged because of any credits relating to the Winslow.
The second vessel was named the Alden A. Mills, and is hereinafter called the Mills. It was not delivered until November 8, 1919.
When the original writ was served on the trustee, it was unfinished and the cost of its completion would have been at least $30,000, and there remained unpaid $78,179.09 on the contract relating to that vessel. Of this amount $30,000 was to be paid "within ten days after completion of the second vessel acceptance of the same by the architects, and delivery to the Owner." No claim is made that the trustee is chargeable for this amount. The plaintiff contends that he is entitled to an order charging the trustee because the contract further provided for the payment of fixed amounts within ten, thirty, sixty, ninety and one hundred and twenty days after the completion and delivery of the Winslow; that as these were due absolutely and without contingency at the time of the service of the original writ, they were attachable before they became payable, although...
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...was held to bind the plaintiff to the truth of the matters included in the answer and statements of the trustee. Krogman v. Rice Brothers Co. 241 Mass. 295, 301, 135 N.E. 161;Workers' Credit Union v. Hannula, 285 Mass. 159, 160, 188 N.E. 710. We need not mention other decisions or statutes ......
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