Lariviere v. Boucher

• Decision Date: 01 April 1937
• Citation: 297 Mass. 27,8 N.E.2d 353
• Parties: LARIVIERE v. BOUCHER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

297 Mass. 27

8 N.E.2d 353

LARIVIERE

v.BOUCHER.

Supreme Judicial Court of Massachusetts, Worcester.

April 1, 1937.

Action of contract to recover for money lent by Francois Lariviere against Emile Boucher. From an order dismissing a report of adverse rulings, plaintiff appeals.

Affirmed.Appeal from Appellate Division of District Court, Western District; Wall, Judge.

E. A. Brodeur, of Worcester, for appellant.

C. S. Murphy and H. J. Nugent, of Worcester, for appellee.

RUGG, Chief Justice.

This is an action of contract to recover for money lent by the plaintiff to the defendant. The answer of the defendant contained a general denial and plea of payment. At the trial, questions were asked of the plaintiff on cross-examination concerning his knowledge of the bankruptcy of the defendant. The plaintiff objected to this line of inquiry on the ground that the defence of bankruptcy was not open under the pleadings; the questions were admitted by the trial judge, who suggested that the defendant could later amend his answer. The plaintiff testified in response to these questions that he had received no notice of the bankruptcy of the defendant, that he saw in a paper something about the bankruptcy and knew from that that the defendant had gone into bankruptcy, and that this was subsequent to the lending of money to the defendant. The plaintiff claimed a report on this ruling. Later the defendant was allowed to amend his answer by pleading his bankruptcy and his discharge in bankruptcy. The plaintiff objected to the allowance of the amendment and requested a report thereon. On October 4, 1935, finding was made in favor of the plaintiff. On October 7, 1935, the defendant filed a motion to vacate the finding and to reopen the case so that he could submit further evidence of his bankruptcy and his discharge. The trial judge vacated the finding but denied the motion for a new trial. On February 7, 1936, the defendant's motion for new trial was allowed only to present ‘evidence as to bankruptcy and discharge therein.’ On March 13, 1936, a finding was made that the defendant was discharged in bankruptcy and that the plaintiff had seasonable notice of the bankruptcy. A general finding was made for the defendant. The plaintiff's request for a report to the Appellate Division filed on March 16, 1936, and allowed on May 18, 1936, set out these matters: ‘1. The ruling at the trial that the defendant could amend his answer by adding thereto, and subsequently to the hearing, a plea of bankruptcy and immediately proceed to question the plaintiff on that plea. 2. The ruling of the court on the defendant's motion to vacate finding. 3. The finding on the evidence that the plaintiff had ‘seasonable’ notice of the bankruptcy of the defendant. 4. The refusal of the judge to receive further testimony on the question of notice of the plaintiff of the bankruptcy of the defendant at the second trial of the cause. 5. The limiting of the testimony at the second trial of the cause to the admission of evidence of the defendant's discharge in bankruptcy only.'

It is plain that the allowance of the amendment to the answer of the defendant presents no error of law. That rested within the sound judicial discretion of the trial judge. G.L.(Ter.Ed.) c. 231, §51; Pizer v. Hunt, 253 Mass. 321, 331, 148 N.E. 801;Shapiro v. McCarthy, 279 Mass. 425, 181 N.E. 842;Ames v. Beal, 284 Mass. 56, 62, 187 N.E. 99;Ducharme v. Coe Motors, Inc., 275 Mass. 69, 175 N.E. 168. The plaintiff did not ask for a continuance on the ground of surprise when bankruptcy was suggested as a defence. The record does not show abuse of discretion by the trial judge or prejudice to the plaintiff. Howe v. Pierson, 12 Gray, 26;Noble v. Mead-Morrison Mfg. Co., 237 Mass. 5, 16, 129 N.E. 669.

The granting of the motion to vacate the finding did not constitute error in law. It was within the power conferred upon the trial judge. G.L. (Ter.Ed.) c. 231, § 129; Rule 26 of the District Courts (1932); McKinley v. Warren, 218 Mass. 310, 105 N.E. 990;Malden Trust Co. v. Perlmuter, 278 Mass. 259, 179 N.E. 631;Nerbonne v. New England Steamship Co., 288 Mass. 508, 510, 193 N.E. 72.

The trial judge found as a fact that the plaintiff had seasonable notice of the bankruptcy. No request was...