Reynolds v. Grow
| Citation | 265 Mass. 578 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Decision Date | 04 January 1929 |
| Parties | WILLIAM W. REYNOLDS & another v. GEORGE GROW & others. |
December 4, 1928.
Present: RUGG, C.
J., CROSBY CARROLL, WAIT, & SANDERSON, JJ.
Equity Pleading and Practice, Waiver of defence, Retention of suit for assessment of damages, Cross bill. Waiver. Damages, In suit in equity.
The plaintiff in a suit in equity sought to establish the amount due him from the defendant under a contract and to reach and apply certain of the defendant's property alleged to have been conveyed in fraud of creditors. The defendant filed a cross bill alleging breach of the contract and false representations by the plaintiff and seeking the assessment of damages against the plaintiff. Upon motion by the defendant, the bill and cross bill were referred to a master, before whom a full hearing was had. The defendant's counsel stated at the beginning of the hearing that the defendant waived no defence which might be open to him; and, at the close of the hearing contended that the plaintiff was not entitled to equitable relief. Upon facts found by the master, it appeared that the plaintiff was not entitled to any equitable relief, but a final decree was entered ordering the defendant to pay the plaintiff a certain amount found by the master to be due. The defendant appealed, contending that the assessment of damages was erroneous. Held, that
(1) The defendant failed seasonably to assert the defence that the plaintiff had an adequate remedy at law; and such defence was waived by the defendant;
(2) The final decree was proper and was affirmed.
In the title to the cross bill in the suit in equity above described, an insertion was made to the effect that the cross bill was "to amended bill"; and it was alleged in the cross bill that an amended bill had been filed, although the record before this court on appeal contained no copy of any amended bill, and it did not appear that any amendment to the bill had been allowed. After the filing of the master's report, and without objection by the defendant, a motion by the plaintiff that the
"amended bill" be struck from the record was allowed. No decree was entered dismissing the cross bill. The master found, without objection by the defendant, that the cross bill was to the original bill. The defendant contended that, because the "amended bill" was ordered struck out, the cross bill should be disregarded and given no significance as showing a waiver of the right to rely on a defence that the plaintiff had an adequate and complete remedy at law. Held, that there was no merit in such contention.
BILL IN EQUITY, filed in the Superior Court on February 8, 1924. The same counsel represented all defendants.
The pleadings, proceedings before a master to whom the suit was referred, and a final decree entered by order of Morton, J., are described in the opinion. The defendants appealed.
R.S. Wilkins, for the defendants. R.W. Reeve, (A.B. Tolman with him,) for the plaintiffs.
This is a bill in which the plaintiffs seek to establish the amount due them under a contract entered into with the defendants Grow, Conley and Stoneman, relating to the construction of a country club in Weston, and to reach and apply in payment certain property of the defendants alleged to have been conveyed in fraud of creditors. The three defendants named are now the only parties defendant.
A cross bill was filed alleging breaches of the contract by the plaintiffs resulting in damages which the defendants sought to recover. The master's report states that the defendants alleged in amendment to their cross bill false and fraudulent representations by the plaintiffs in reliance upon which the defendants entered into the contract and conspiracy between the plaintiffs to defraud the defendants. No copy of this amendment is printed in the record. The suit and cross bill were referred to a master upon motion of the defendants Conley, Stoneman, and others not now parties. No claim was made for jury issues. After extended hearings the defendants filed with the master forty requests for findings of fact; many of these were granted; others, some of which asked for findings of false representations by the plaintiffs, were denied. One of the requests of the defendants was in part allowed and resulted in a deduction from the amount which the plaintiffs alleged to be due. Other findings were of substantial sums in their favor in case the court should make certain rulings on the facts. The defendants also filed objections to the report. Upon the facts found by the master, the equitable relief sought could not be granted, but the suit was retained for the assessment of damages. After confirmation of the master's report, a final decree fixing the amount of the indebtedness of the defendants to the plaintiffs and making other orders connected therewith was entered, from which the defendants appealed. The only question argued by them is whether the court had the right to retain the bill for the assessment of damages.
As a general rule when a bill is brought in good faith to obtain equitable relief to which, upon the allegations if proved, the plaintiff would be entitled, if it appears upon the hearing that the relief cannot be granted but that the plaintiff has suffered damage, the bill may in the discretion of the court be retained for the assessment of damages. Case v Minot, 158 Mass. 577 , 588. Newburyport Institution for Savings v. Puffer, 201 Mass. 41 , 47. Perry v. Pye, 215 Mass. 403 ,...
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