Lloyd v. Imperial Machine Stamping and Welding Co.

• Decision Date: 12 July 1916
• Citation: 224 Mass. 574
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: JULIET F. LLOYD v. IMPERIAL MACHINE STAMPING AND WELDING COMPANY & others.

224 Mass. 574

JULIET F. LLOYD v. IMPERIAL MACHINE STAMPING AND WELDING COMPANY & others.

Supreme Judicial Court of Massachusetts, Suffolk.

July 12, 1916

March 21 22, 1916.

Present: RUGG, C.

J., LORING, BRALEY & DE COURCY, JJ.

Equity Pleading and Practice, Bill, Decree. Equity Jurisdiction, To enforce collection of negotiable instrument, Equitable replevin.

A bill in equity cannot be maintained to enforce the collection of certain negotiable bonds of which the plaintiff alleges that he was deprived unjustly by the defendant who procured possession of them by fraud and deceit, because a suit to collect a negotiable instrument can be maintained only by its holder.

A plaintiff in equity, who alleges that he is entitled to become the holder of certain negotiable bonds and who wrongly has brought a bill to enforce the collection of the bonds which are not in his possession, cannot obtain the relief he seeks by amending his bill into a bill for equitable replevin, because, if the court should take jurisdiction of the bill as one of equitable replevin, it could not retain jurisdiction for the purpose of compelling the defendant to pay the bonds, such relief not being an incident to a bill of equitable replevin.

In a suit in equity, where it is plain that the plaintiff has mistaken his remedy, if he has any, the better practice is, even where an absolute decree dismissing the bill would not be a bar to any proper action or suit to enforce the rights of the plaintiff in the matters complained of, to provide in the decree that the bill is dismissed without prejudice, and it so was ordered in the present case.

BILL IN EQUITY filed in the Supreme Judicial Court on August 3, 1915, and containing the allegations stated in the opinion.

The defendant Buff demurred to the bill. The case was heard on the demurrer by Pierce, J., who made an order for a decree sustaining the demurrer. On motion of the plaintiff an interlocutory decree was made that the bill be taken pro confesso against the defendant the Imperial Machine Stamping and Welding Company.

By order of Pierce J., a final decree was entered sustaining the demurrer of the defendant Buff and ordering that as against him the bill be dismissed. The plaintiff appealed.

G. L. Wilson, for the plaintiff.

W. M. Richardson, (W.

P. Everts with him,) for the defendant Buff.

LORING, J. This case comes up on an appeal from a decree dismissing the bill entered on an order sustaining a demurrer filed by the defendant Buff. In her bill the plaintiff alleged that in the summer of 1909 she became the owner of seventy-one first mortgage bonds of the defendant welding company; that these bonds were part of an issue of seven hundred secured by a mortgage of certain rights in an invention, future improvements thereon and patents securing the same, together with drawings, patterns, machines, machinery and equipment for the manufacture of the machines covered by the invention and patent; that after making the mortgage the welding company by an indenture dated September 5, 1911, transferred the exclusive right, title and interest to the property covered by the mortgage to the defendant Buff and another, in consideration of and conditioned upon the grantees paying a royalty therein described for all machines manufactured and sold by them under the patent. It is further alleged that by said royalty indenture the welding company agreed that Buff and his associate might have the mortgage securing the seven hundred bonds aforesaid discharged at their own sole expense and coupled with that authority was an agreement by Buff and his associate that they would "indemnify and save harmless" the welding company "from any loss costs, charges, damages, expenses, suits, actions, and proceedings at law or equity" which the welding company "might bear, sustain, be at, or...