Massachusetts Gasoline & Oil Co. v. Go Gas Co.

• Decision Date: 28 May 1929
• Citation: 267 Mass. 122,166 N.E. 563
• Parties: MASSACHUSETTS GASOLINE & OIL CO. et al. v. GO GAS CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

267 Mass. 122

166 N.E. 563

MASSACHUSETTS GASOLINE & OIL CO. et al.

v.GO GAS CO. et al.

Supreme Judicial Court of Massachusetts, Worcester.

May 28, 1929.

Appeal from Superior Court, Worcester County; H. T. Lummus, Judge.

Bill in equity by the Massachusetts Gasoline & Oil Company and others against the Go Gas Company and others. From interlocutory and final decrees, plaintiffs appeal.

Affirmed.C. E. Tupper, of Worcester, and H. W. Blake, of Gardner, for appellants.

L. Brown, of Boston, for appellees Go Gas Company and Unity Petroleum Co.

RUGG, C. J.

The defendants have argued that the reamended bill is not rightly before this court because its filing was not allowed by the superior court. The contention is sound that an amendment to a bill in equity cannot be filed after the parties are at issue unless and until its form and substance are brought to the attention of a judge and its filing allowed by him. That this must be so is apparent, not only because by inherent necessity such amendments cannot become a matter of record as of right and can be filed only by order of court, in order that litigation may progress by orderly processes, but also because of no proposed amendment can be allowed except in order to enable a plaintiff to sustain the action for the cause for which it was intended to be brought. G. L. c. 231, § 51. In order to determine that question, the proposed amendment must be inspected by the judge and possibly a hearing of evidence had. Clark v. New England Telephone & Telegraph Co., 229 Mass. 1, 6, 118 N. E. 348. There are other reasons. For example, in a case like that at bar, where the case has once been before this court on a demurrer and the demurrer has been sustained, an amendment ought not to be allowed unless, in substance, it avoids the defects hitherto declared to exist and presents a cause fit for further examination on the merits. Merely to change the verbiage is not enough to require prolongation of litigation. The substantive weakness must be remedied. This is the established practice. It is the same in equity as at law. Hanscom v. Malden & Melrose Gas Light Co., 220 Mass. 1, 9, 107 N. E. 426, Ann. Cas. 1917A, 145; Pierce v. Columbia Securities Co., 246 Mass. 210, 223, 141 N. E. 72;Lowrie v. Castle, 225 Mass. 37, 39, 113 N. E. 206;Holmes v. Carraher, 251 Mass. 536, 538, 539, 146 N. E. 900, and cases reviewed; 1926 Equity Rules, 14, 21. The action of the judge on November 27, 1927, in sustaining the demurrer to the amended supplemental bill by adding words to the effect that the plaintiffs were given twenty days in which to amend the bill was not an allowance of the amendment; it was merely the exercise of discretion in favor of, rather than against, the filing of a permissible and appropriate amendment. Reno v. Cotter, 236 Mass. 556, 563,129 N. E. 300. It still remained necessary that the form and substance of the proposed amendment be found such as to warrant being made a part of the files of the court.

The defendants, however, have not saved this point. Their motion was to strike out the amendment ‘for that the scope and effect of the so-called amendment’ were to introduce a new and different cause of action; not for that its filing had not been allowed after inspection and determination by the court of the necessary preliminaries in order to render such filing permissible. It must be assumed that the motion made was the one heard and decided. R. J. Todd Co. v. Bradstreet Co., 253 Mass. 138, 143, 148 N. E. 369. The demurrer did not raise the point now argued.

It follows that the defendants, by proceeding to further steps in the case without raising this point, must be held to have waived it. Proper practice does not permit presentation of it in this court for the first time. Volpe v. Sensatini, 249 Mass. 132, 134, 144 N. E. 104.

The defendant Go Gas Company filed a demurrer to the reamended bill on December 29, 1927. That demurrer was sustained by interlocutory decree entered on April 11, 1928. The plaintiffs moved on April 17, 1928, that an earlier amended bill be taken pro confesso against the Go Gas Company for failure to answer. The plaintiffs' appeal from the denial of that motion presents no question of law. Manifestly the denial of the motion was a wise exercise of discretion in view of all the proceedings. 1926 Equity Rule 7; White v. White, 169 Mass. 52, 54, 55, 47 N. E. 499.

This case has been here before and is reported in 259 Mass. 585, 156 N. E. 871. The facts as then alleged in the bill are there set out at large. They need not be repeated. The question then presented for decision was whether the making of the applications and the issuance of certificates as there set forth created an equitable lien or right in the nature of an equitable lien upon the land and buildings subsequently acquired by those issuing the certificates or in whose behalf they were issued, such as to bind them in the hands of subsequent purchasers or mortgagees who took with notice of the facts. That question was answered in the negative. That ground need not be re-examined. All that there was decided is reaffirmed.

There now are averments, not present in the earlier pleadings of the plaintiffs, to the effect that a majority of the certificates issued to the plaintiffs were under seal and that all where intended so to be. That factor is not of importance. The allusion to it in the opinion in 259 Mass. 593, 156 N. E. 871, was made merely as to a fact, but there was no intimation that the presence of a seal would have placed the rights of the plaintiffs on any higher or better footing in view of all the other facts and of the relief then or now sought. Consolidated Arizona Smelting Co. v. Hinchman (C. C. A.) 212 F. 813, 824.

The Unity Petroleum Corporation is now joined as a defendant. Whereas in the earlier pleadings of the plaintiffs there were averments that some of...