Robinson v. Wiley

• Decision Date: 23 June 1905
• Parties: ROBINSON v. WILEY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

188 Mass. 533

74 N.E. 923

ROBINSON v. WILEY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 23, 1905

COUNSEL

Wm H. Preble and Stephen H. Tyng, for defendant Wiley.

Chas W. Bartlett, Elbridge R. Anderson, and Arthur T. Smith, for defendants Bullard & Wild.

OPINION

BRALEY J.

The fund in the possession of the complainant is the avails of the judgment recovered in Wiley v. Bunker Hill National Bank, 183 Mass. 495, 67 N.E. 655. It belongs to the plaintiff in that suit, who is a claimant here, unless under the assignment made by him for the benefit of his creditors his title passed to the assignees, who began and prosecuted the action. In the granting part of the instrument he conveys to them 'all * * * his property, choses in action of every name, nature, and description, * * * except such property only as is exempt by law from attachment.' The language employed is comprehensive, and must be held to have conveyed all his title in any personal property or rights of action he then owned or possessed, and which were assignable. Under the clause of exemption, which follows the form commonly used, the parties evidently intended to exclude from the conveyance the class of property that is exempt from seizure on an execution against the judgment debtor by the provisions of Pub. St. 1882, c. 171, § 34. Up to the time of his failure the assignor had been engaged in buying and selling wood and coal, and kept an account with the Bunker Hill National Bank, upon which he drew checks in the ordinary course of his business. Having a sufficient balance for this purpose, he drew a check in favor of third parties, which upon presentation, the bank wrongfully refused to honor. In consequence of this it was claimed in the original suit that his credit had been impaired; that he had suffered pecuniary loss, and was thereby rendered insolvent. The strongest contention of the claimant rests upon the ground that the injury to his credit thus caused was purely personal, and essentially slander. If this view is upheld, then the act of the bank was a pure tort, and his right of recovery for the wrong was unassignable. Rice v. Stone, 1 Allen, 566, 569, 570; Linton v. Hurley, 104 Mass. 353; Comegys v. Vasse, 1 Pet. 193, 213, 7 L.Ed. 108. Independently of the contract he had no cause of action. The refusal to pay his check was not a positive personal wrong distinct in itself, for which alone a suit could have been maintained for injury to his feelings, but it was inseparable from the contract. Drake v. Beck, 11 M. & W. 315, 319. The ability of a trader to borrow money usually depends on the belief of the lender that the debt will be paid, and whatever tends to lower the financial standing of the borrower impairs his financial credit in the market. When checks given by him to his creditors are not paid upon presentation to his bankers, his financial standing, in the absence of satisfactory explanation, usually becomes impaired, and, if not retrieved, it may cause loss of customers, and finally ruin his business, with which may be associated a valuable right of good will. Angier v Webber, 14 Allen, 211, 92 Am. Dec. 748; Moore v. Rawson, 185 Mass. 264, 272, 273, 70 N.E. 64. Such a result may be brought about in various ways. If accomplished by the circulation of false reports, it is slander or libel, according to the form of defamation used, and the right of action dies with the person; but where it takes the form of a breach of contract, then the remedy is under the contract for damages, not to his person, but to his business, which must be considered as property. While it may be true...