Rowland v. MaDdock

• Decision Date: 22 May 1903
• Parties: ROWLAND et al. v. MADDOCK et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

183 Mass. 360

67 N.E. 347

ROWLAND et al. v. MADDOCK et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 22, 1903

COUNSEL C. P. Sampson, for plaintiffs.

Braddeis Dunbar & Nutter and Edw. F. McClennen, for defendants.

OPINION

LORING, J.

This is a bill in equity by two creditors of one Tebbitt, an absconding debtor, against the defendants, who, as a committee of Tebbitt's creditors, had undertaken to recover from him his property, and distribute it among such creditors as assigned their claims to them. The defendants demurred to the bill of complaint. The demurrer was overruled, and an appeal taken. An answer was then filed, the case went to a master, seven exceptions were taken by the defendants, and an interlocutory decree was made sustaining four of the seven. From this the plaintiffs took an appeal. The suit went back to the master under the interlocutory decree, and the plaintiffs took exceptions to the supplementary report, which were overruled, and a final decree was entered, and appeals taken by both parties.

The first point made by the defendants is that they are entitled to the costs of the appeal, because they made an offer of judgment in the amount of the decree. That point is not before us. The record does not disclose any offer of judgment on their part. The facts found by the master are that the plaintiffs were creditors of one Tebbitt who absconded from the commonwealth with a large amount of money, bonds, and other property. A meeting of his creditors was held, at which the plaintiffs were represented, and the defendants were appointed a committee, with full powers. The committee met, and wrote to the plaintiffs, asking them to contribute to the expenses of collecting the plaintiffs' claim, and bringing Tebbitt to justice. At the request of the committee all creditors who were to be represented by them including the plaintiffs, assigned their claims against Tebbitt to them. Criminal proceedings were instituted against Tebbitt. He was arrested at Regina, in Canada, extradited, and brought back to the commonwealth by an agent of the commonwealth, who took possession of and brought here certain money and property found in Tebbitt's possession at the time of his arrest. This property was handed over to the defendants, and distributed by them. The claims of all the creditors represented by the defendants amounted to $43,114.38, and the amount realized from Tebbitt's property was $29,967.73. The committee paid a first dividend of 40 per cent., a second of 7 per cent., and a third of 5 per cent. The plaintiffs accepted the first two dividends, but, on receiving a check for the last one they held it, and wrote to the defendants for a statement of their account. This was on January 10, 1899. The committee received the letter, but determined not to answer it, nor to send the statement requested by the plaintiffs. But on February 4th, after a personal interview between the plaintiffs' counsel and two of the committee, a short and inadequate statement was sent to the plaintiffs. A more detailed statement was asked for by the plaintiffs on February 4th and 11th and May 8th, and the plaintiffs offered to send some one to copy the account from the books of the defendants, or to pay the expense of such a copy, made by the defendants. To the last request one of the committee wrote that Tebbitt's affairs had been properly settled, and that he had 'no further time to give to the matter.' A proper account was again requested on June 9th, to which no answer was sent or received, and on June 28th this bill for an account was brought. The check for the final dividend was held by the plaintiffs unindorsed, and was surrendered to the master after an account had been elicited from the defendants for the first time in their examination in this suit. The master found that the defendants had on hand a balance of $20.66, which was acknowledged by them. He disallowed the payment of $500, paid to one of the defendants for going to Canada to identify Tebbitt, in addition to $500 retained by each defendant (amounting in all to $2,000) as compensation for services on the committee. He disallowed all payments for compensation for the services of the defendants, and also one of $500, paid as a gratuity to the members of the police force for services in bringing Tebbitt from Canada in pursuance of their duty as such. On the argument of exceptions taken by the defendants to this report, an interlocutory decree was entered, declaring that the defendants were entitled to compensation for their services, including the service of the defendant Gormley in going to Canada, and declaring that the plaintiffs were entitled to their pro rata share of the balance found by the master to be in the hands of the defendants according to the proportion which their claim against Tebbitt bore to the total amount of all claims against him entitled to share in the funds held by the defendants. The case was sent back to the master, who made a supplementary report fixing the...