Mayberry v. Sprague

Decision Date06 January 1911
Citation207 Mass. 508,93 N.E. 925
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Warner V. Taylor, for plaintiff.

H. J Jaquith, for defendant.



The only question presented by the first bill of exceptions is whether the defendant's demurrer to the plaintiff's bill in equity was rightly overruled.

The following facts are alleged in the bill: The plaintiff's testator was a creditor of the firm of Hapgood & Long, and the defendant was a common-law assignee of their property for the benefit of their creditors. Before the assignment the plaintiff's testator had brought an action against the firm in which he had trusteed one Turnbull. The firm claimed that Turnbull owed them upwards of $1,400, but this was disputed by Turnbull. Thereupon, on a day in April, 1902, not stated, the testator and the defendant assignee came to the following agreement, to wit: The assignee purchased the testator's claim and agreed to pay him therefor $1,375 from the funds collected from Turnbull, and if so much as $1,375 should not be collected from Turnbull, then the assignee was to make up the difference from other funds belonging to him as assignee as aforesaid. The 'repondent Sprague subsequently received from said Turnbull $1,000 in settlement, which he holds as trustee for your complainant and which he wrongfully and fraudulently refuses to turn over to your complainant, and which he has wrongfully and fraudulently appropriated to his own use.' The plaintiff brought an action at law 'against respondent Sprague in his capacity as assignee aforesaid,' a verdict was ordered for the plaintiff, and he now holds an unsatisfied execution against the goods and estate of the firm in the hands of Sprague (the defendant) for $1,249.07. A copy of this execution is annexed to the bill, and it appears from it that the sum of $1,249.07 is due, with interest from July 6, 1908.

By the allegations of the bill, which the defendant has admitted to be true, he received from Turnbull $1,000, which he 'fraudulently appropriated to his own use.' Under the agreement between the testator and the defendant the money received from Turnbull was the money of the plaintiff's testator in the hands of the defendant, and therefore he could maintain a bill in equity against the defendant for an accounting and to recover it. It follows that this bill is well brought unless there is something in the technical defenses set up by the defendant to escape from accounting to the plaintiff for the money of the testator which he admits he 'wrongfully and fraudulently appropriated to his own use.' His main reliance is on the fact that the plaintiff brought an action at law on the contract. If he had sued the defendant personally for a breach of the contract there would have been ground for the contention that he had elected not to treat the fund of $1,000 as his own. But so far as appears the plaintiff did not undertake to hold the defendant liable for breach of the contract. What he seems to have undertaken to do was to bring an action at law which would result in a judgment against the funds of the firm in the defendant's hands. The execution recites that the plaintiff has 'recovered judgment against the goods and estate which were of Everett...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT