Myers v. Warren

• Decision Date: 02 June 1931
• Citation: 275 Mass. 531,176 N.E. 600
• Parties: MYERS v. WARREN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

275 Mass. 531

176 N.E. 600

MYERS

v.WARREN et al.

Supreme Judicial Court of Massachusetts, Middlesex.

June 2, 1931.

Appeal from Superior Court, Middlesex County; Qua, Judge.

Separate actions by James E. Myers, Jr., against Peter R. Warren and against Peter R. Warren Company. The cases were consolidated, and from the decrees defendant corporation appeals.

Affirmed.

Samuel Bamber, of Boston, for appellant.

Benjamin Levin and Alfred Sigel, both of Boston, for appellee.

John D. Carney, of Boston, for Peter R. Warren.

WAIT, J.

In December, 1923, the plaintiff, a resident in the state of Maine, began separate actions at law against Peter R. Warren, and P. R. Warren Co., a corporation of which Peter R. Warren was president. The writs bore date December 3, 1923. They stated an ad damnum of $5,000. They were returnable to the superior court at Cambridge on January 7, 1924. Both were placed in the hands of officers for service. Service was made on the corporation on December 14, 1923. Under date of December 22, 1923, the officer stated as a return on the writ against Warren that he had attached a ship as property of the defendant but, after diligent search, had been unable to find him and so returned the writ without further service. Declarations were filed on January 7, 1924, claiming the same amounts on the same items in both actions. The corporation, on January 12, 1924, answered a general denial and payment. Service in hand upon Warren was made June 13, 1929, upon an order of notice for the completion of service granted June 4, 1929. On May 15, 1929, the plaintiff moved for leave to amend his action at law against the corporation to a bill in equity, and on June 15 moved to consolidate the action against Warren with the case against the P. R. Warren Co. Both motions were granted on June 21, 1929; and, on the same day, the plaintiff filed his bill in equity against both defendants, annexing a statement of indebtedness, the same in amount as the accounts annexed to his declarations but verying somewhat in the items. Warren answered on July 22, 1929.

The master to whom the case was referred filed his report on June 26, 1930. Hearings were had upon a motion to recommit for further findings on the question of laches, upon exceptions of the defendants, and upon the report. These resulted in the denial of the motion in an interlocutory decree overruling the exceptions and confirming the report, and in a final decree ordering payment by both defendants of the single sum found to be due, for which execution was to issue. The defendant Warren now has waived his appeals. The case is before us upon the corporation's appeals. It argues only the questions of laches and of the statute of limitations.

[2] Its contentions are without merit. In the years 1917, 1918 and 1919 the plaintiff sold merchandise and rendered service to Peter R. Warren, doing business as the P. R. Warren Co., for which payment was due. In 1919 Warren organized the corporation, which took over his business and undertook the payment of this indebtedness. On June 2, 1919, it paid $1,000 on the account to the plaintiff, who, rightfully, applied it to the general account. Day v. Mayo, 154 Mass. 472, 28 N. E. 898. When suit was brought in 1923, the plaintiff intended to proceed promptly, but until 1929 was unable to locate Peter R. Warren and to obtain service. Warren moved from place to place, and for a time was in Europe, but he remained domiciled in Massachusetts throughout the entire period from 1917. The plaintiff had inquiries made from time to time in an effort to find Warren. We cannot properly say that the finding that he was not guilty of laches is wrong. Inasmuch as no harm has resulted to the defendants from the delay, as proceedings were begun with reasonable promptness, and as exertions have been substantially continuous to obtain service, there is no such laches as constitutes a good defense in equity. Cohen v. Bailly, 266 Mass. 39, 165 N. E. 7;Calkins v. Wire Hardware Co., 267 Mass. 52, 165 N. E. 889. See Royal Bank of Liverpool v. Grand Junction Railroad & Depot Co., 125 Mass. 490;Snow v. Boston Blank-Book Manuf. Co., 153 Mass. 456, 26 N. E. 1116.

The law is settled that the beginning of legal proceedings to enforce payment of a debt tolls the running of the statute of limitations. Gardner v. Webber, 17 Pick. 407, 412. See G. L. c. 260, § 32; Bullock v. Dean, 12 Metc. 15. Except in peculiar circumstances, none of which appears in the case...