Sherman v. Werby

• Decision Date: 25 August 1932
• Citation: 280 Mass. 157,182 N.E. 109
• Parties: SHERMAN v. WERBY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

280 Mass. 157

182 N.E. 109

SHERMAN

v.WERBY.

Supreme Judicial Court of Massachusetts, Suffolk.

Aug. 25, 1932.

Exceptions and Appeal from Superior Court, Suffolk County; Raoul H. Beaudreau, Judge.

Action by Annie Sherman against Abraham Werby and trustees. From judgment sustaining plea in abatement and abating writ, plaintiff brings exceptions and appeals.

Exceptions sustained; appeal dismissed.

M. Michelson, of Boston, for appellant.

Edward M. Dangel, of Boston, and Maurice Simon, of Lawrence, for appellee.

PER CURIAM.

The subjoined opinion was prepared by Mr. Justice SANDERSON, and adopted after his death as the opinion of the court.

The plaintiff has commenced two actions against the defendant, the first by writ dated December 11, 1929, and the second by writ dated March 6, 1930.

The declaration in the first action is in five counts. The first count, in contract, states, in substance, that the plaintiffis the wife of Abraham Sherman, who was employed by the defendant as manager of a garage in which he had charge of the handling of money; that the defendant required a deposit of $3,000 as security for the faithful performance by Sherman of his duties; that the plaintiff deposited that sum and the defendant agreed and contracted with the plaintiff that the sum should be repaid to her upon the termination of the employment; that her husband faithfully discharged his duties and the employment has terminated; that the defendant has refused upon demand to return to the plaintiff the money. The second count, in tort, alleges that the defendant made representations to the plaintiff and induced her to deposit with him the sum of $3,000 for the faithful performance by her husband of the duties of his office; that the defendant promised to return the money when the employment should end; that the defendant at the time had no intention of returning the money, but intended to defraud the plaintiff of $3,000; that the plaintiff, believing the representations of the defendant, deposited $3,000 as security for the faithful performance of his duties by her husband; that he did faithfully perform his duties; that the employment has now terminated and the defendant has refused to return the money. Count three, in contract, alleges that the defendant owes the plaintiff $3,000 for money received by the defendant to the plaintiff's use. Count four, in tort, alleges that the defendant converted to his own use the sum of $3,000, the property of the plaintiff; and count five, in contract, alleges that the defendant owes the plaintiff $3,000 with interest, in accordance with an account annexed which is in the following form: ‘Item 1. Cash deposited with the defendant $3,000.00 Item 2. Interest on $3,000.’ The declaration also states that counts in contract are joined with counts in tort, the plaintiff being uncertain as to which class of action her cause of action belongs.

The declaration in the second case alleges that the sum of $3,000 was due the plaintiff from the defendant as she believed in good faith, and she had a fair and reasonable ground for succeeding in recovering the same; that through her agent she made a demand upon the defendant for $3,000, and when the defendant failed and neglected to pay she intended to bring suit against the defendant to recover that sum and so stated to the defendant; that the defendant solicited and requested the plaintiff to forbear and promised and agreed to pay the plaintiff the whole sum of $3,000 in consideration that the plaintiff would forbear to bring suit at that time; that at the defendant's instance and request, and relying upon the defendant's promise, and in pursuance of the said agreement, the plaintiff did forbear to bring suit; but that the defendant has failed, neglected, and refused to pay the said $3,000.

The record states that, in answer to a question propounded by the judge, the attorney for the plaintiff said that he expected satisfaction only on one execution if he recovered judgment in both cases.

The defendant in the second action filed a plea in abatement stating that the defendant, not waiving his right to answer to the merits in this action, says that the plaintiff commenced a previous suit for the same cause of action, as alleged in the plaintiff's declaration, by a writ dated December 11, 1929, and returnable to the superior court on January 6, 1930, which action is still pending, wherefore the defendant prays that this action be dismissed or for such other order as may be proper. The trial judge sustained the plea and abated the writ.

[1] No contention is now made that recovery on the count in the second action could be had on any of the counts in the first action, except the third and fifth. So far as the fifth count is concerned, even if there might be recovery on an...