Peladeau v. Fred Gillespie Lumber Co.
| Citation | 285 Mass. 10,188 N.E. 380 |
| Parties | HENRI PELADEAU, Limitee, v. FRED GILLESPIE LUMBER CO. |
| Decision Date | 29 December 1933 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; Donnelly, Judge.
Action of contract in the superior court by Henri Peladeau, Limitee, against the Fred Gillespie Lumber Company, wherein defendant filed a declaration in set-off. An amendment changing the party plaintiff was allowed by the judge, and rulings were made by another judge at the hearing of the action without a jury, and defendant saves exceptions.
Exceptions overruled.
M. L. Orlov and A. P. Rudnick, both of Boston, for plaintiff.
L. Wyman, of Boston, for defendant.
This is an action of contract brought to recover for merchandise sold and delivered at various times to the defendant. The case is before this court on two bills of exceptions. The defendant filed an answer containing a general denial, payment, breach of contract, and a declaration in set-off. The writ is dated June 12, 1923, and was returnable the first Monday of July. On May 22, 1931, Henri Peladeau filed a substituted motion wherein it is requested that as a party interested he may be allowed to prosecute the action in the name of the original plaintiff. The motion was heard by a judge of the superior court in the absence of counsel, and was allowed. In a memorandum filed by the judge it is recited that the motion was heard on numerous affidavits furnished by both parties. He found that Peladeau is now the owner of the chose in action which is the subject of the suit by virtue of the assignments referred to in the motion and affidavits; that the plaintiff corporation was liquidated under the ‘Winding Up Act’ of Canada as set forth in the affidavits, but he also found and ruled that such liquidation did not terminate the corporate existence of the plaintiff; that the plaintiff has not used its corporate franchises for a period of more than three years, that such non-user under Canadian law does not operate as a forfeiture of corporate existence until judicial proceedings have been instituted for that purpose, and that such existence still continues. To the allowance of the motion the defendant excepted.
The case, together with two claims of the defendant set forth in its declaration in setoff, was thereafter heard on the merits by another judge of the superior court. The evidence tended to show that the cause of action for which this suit is brought was originally due to the plaintiff, a Canadian corporation, and after the bankruptcy of the plaintiff, in 1924, was assigned through mesne assignments to Henri Peladeau, who was then the owner of the chose in action, and that the present action was prosecuted in the name of Henri Peladeau, Limitee, for the benefit of Henri Peladeau individually.
The defendant's declaration in set-off consisted of two counts, the first for $1,944.54 upon an account annexed for various sums alleged to be due from the plaintiff for services and disbursements. The second court sets forth a single item for services rendered in arranging for and procuring cancellation of a contract between the Associated Importers, Ltd., and Henri Peladeau, Limitee, by which the defendant alleged that the plaintiff owes the defendant $9,000 with interest.
The judge found for the plaintiff upon the declaration as amended, and assessed damages in the sum of $11,479.75. He found for the defendant upon the first count of the defendant's declaration in set-off in the sum of $2,676.47, and upon the second count of the declaration in set-off the finding was for the plaintiff.
The record shows that Henri Peladeau testified by deposition; that one Fred F. Dow, called by the plaintiff, testified that he was and had been for twenty years a dealer in timber and lumber and was a friend of Fred Gillespie; that they had known each other since 1920 or earlier; that Gillespie told the witness that he went to Europe with Peladeau as his guest and that he had borrowed money from Peladeau; that subsequently Gillespie told the witness that if his sales agency with Pleladeau was terminatedhe would sue Peladeau for his services on the trip to Europe. This witness further testified at length. The defendant's substituted bill of exceptions does not contain all the evidence produced at the trial, it being therein recited in substance that the large bulk of the evidence other than the deposition of Peladeau and the testimony of the witness Dow has not been included in the bill of exceptions ‘on the Defendant's contention that it is not material to the two single questions of law raised by this bill.’
The exception saved in the first bill of exceptions is to the granting of the motion of Peladeau to prosecute the action in the name of the...
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