Mcmahon v. Miller
| Decision Date | 20 June 1906 |
| Parties | McMAHON v. MILLER et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John E. Hannigan and Isidor Fox, for appellant.
Jos. O Burdett, for appellees.
This is a bill in equity for relief under Rev. Laws, c. 141, § 10. The presiding justice ruled on the facts found by him, that the plaintiff had not been guilty of culpable negligence, but ruled that there was a mutual mistake of law on the part of the plaintiff and defendants and that the plaintiff was not entitled to relief under Rev. Laws, c. 141, § 10, as interpreted by Powow River Nat. Bank v. Abbott, 179 Mass. 336, 60 N.E. 973, and dismissed the bill with costs. The plaintiff appealed.
We think that the decree dismissing the bill was wrong, and that the plaintiff is entitled to the relief which he seeks. We treat what is called a ruling as in effect a finding that the plaintiff was not guilty of culpable neglect which are the words of the statute and as intended to express the conclusion to which the presiding justice came on that question on the evidence before him and the facts as found by him. That finding distinguishes this case from most if not all of the previous cases which have arisen under this statute. In those cases it was found or ruled that the plaintiff was guilty of culpable neglect. That was evidently the ground on which the case of the Powow River Nat. Bank v Abbott, supra, was decided as shown by the cases cited in the first paragraph of the opinion and by the reasoning of the court. It is plain, we think, that justice and equity require that the plaintiff should have the relief which he seeks. 'The statute is remedial * * * and its operation is not limited to cases where the failure to sue seasonably was due to such fraud, accident or mistake as would be ground for equitable relief if there were no such statute.' Ewing v. King, 169 Mass. 97, 102, 47 N.E. 597. The plaintiff indorsed, for the accommodation of the defendant's testator, notes, the renewals of which came due after the testator's death and which the plaintiff was obliged to take up and on which there is a balance now due him of upwards of $1,700. The personal property belonging to the estate was not sufficient to pay the debts, but there was real estate available for that purpose. The defendant Widger with the knowledge of his coexecutor represented to the plaintiff that if a sale of the real estate were forced there might not be enough to pay the debts and that if the sale was not forced and the proceeds were sufficient the plaintiff's debt would be paid out of them. And he urged the plaintiff not to bring suit and to persuade the bank which held the testator's original notes not to do so. The plaintiff, who had been a warm personal and business friend of the testator, forebore to bring suit, and persuaded the bank also to forbear. Subsequently and before the two years expired the defendants, acting under a license from the probate court, sold a part...
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