Sternheimer v. Harris
| Decision Date | 29 June 1925 |
| Citation | 148 N.E. 447,253 Mass. 169 |
| Parties | STERNHEIMER et al. v. HARRIS et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions and Appeal from Superior Court, Suffolk County; P. J. O'Connell, Judge.
Action of contract by Frederick Sternheimer and others against Eugene B. Harris and others, in which the Boylston National Bank was summoned as trustee. Order charging trustee, and it excepts and appeals. Exceptions sustained; appeal dismissed.
J. Noble, of Boston, for plaintiffs.
F. G. Bauer, of Boston, for trustee.
This is an action of contract, commenced by trustee writ in which the Boylston National Bank was summoned as trustee. The writ was served on the trustee on May 6, 1922. The answer of the trustee filed June 15, 1922, and its answers filed March 24, 1924, to interrogatories of the plaintiff, disclose that at the time of the service of process it had on deposit to the credit of the defendant $5,812.91, and that at the same time it held notes of the defendant aggregating $68,775.26, all payable on demand; that since the service and before answer, on May 6, 1922, demand was made for payment of these notes and the deposit was applied to the partial payment of them. The judge of the superior court ‘found as a fact that no demand had been made on the notes at the time of service of the writ on the trustee,’ and on July 7, 1922, ordered the ‘trustee charged on its answer and on the answers to the interrogatories.’ The trustee is before this court on its exceptions duly saved to the above order of the court.
The exceptions must be sustained. It was said by Gray, C. J., in Eddy v. O'Hara, 132 Mass. 56, at page 61:
It is provided in G. L. c. 246, § 26:
‘A trustee may retain or deduct from the goods, effects or credits in his hands all demands against the defendant of which, had he not been summoned as a trustee, he could have availed himself by way of set-off on a trial or by the set-off of judgments or executions between himself and the defendant, and he shall be liable for the balance only after all mutual demands, excluding therefrom any claim on either side for unliquidated damages for wrongs or injuries, between him and the defendant have been adjusted.’
Of this law, which is a re-enactment of Rev. St. c. 109, §§ 5, 36, the same Chief Justice said:
‘Each of these provisions does but affirm opinions expressed by this court before any such provision had been introduced into the statutes.’ Eddy v. O'Hara, supra.
It was said by Shaw, C. J.,...
To continue reading
Request your trial
-
Brown v. Maguire's Real Estate Agency
... ... R. A. 1915A, 728; First Natl. Bank ... v. Blue, 20 Ala.App. 107, 101 So. 75; Rotteman v ... Herner, 54 Cal.App. 485, 202 P. 334; Sternheimer v ... Harris, 148 N.E. 447, 253 Mass. 169; Brannan's ... Negotiable Instruments Law (4 Ed.), p. 632, sec. 701; 8 C. J ... 406; 57 C. J., p ... ...
-
Messall v. Suburban Trust Co.
...obligation of the debtor not due at the time of attachment but maturing before trial. Eddy v. O'Hara, 132 Mass. 56, 61; Sternheimer v. Harris, 253 Mass. 169, 148 N.E. 447; Lannan v. Walter, 149 Mass. 14, 20 N.E. 196. The Supreme Court in North Chicago Rolling-Mill Co. v. St. Louis Ore & Ste......
-
Chang v. Bankboston, N.A., 01-P-209.
...all moneys or demands except claims for unliquidated damages for wrongs or injuries." Id. at 36, 123 N.E. 235. In Sternheimer v. Harris, 253 Mass. 169, 170, 148 N.E. 447 (1925), a bank had deposits of $5,812.91 from the defendant Harris, against which it held notes from Harris aggregating $......
-
Insurance Co. of North America v. Northampton Nat. Bank
...225 Mass. 458, 460, 114 N.E. 671. This right prevails against a general creditor. See Mass. G.L. c. 246, Sec. 26; Sternheimer v. Harris, 1925, 253 Mass. 169, 148 N.E. 447. We agree, however, that under what appears to be a standard clause in O'Connor's and INA's indemnification contract, IN......