Stratton v. Hernon

• Decision Date: 02 September 1891
• Citation: 28 N.E. 269,154 Mass. 310
• Parties: STRATTON v. HERNON et ux.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

154 Mass. 310

28 N.E. 269

STRATTON v. HERNON et ux.

Supreme Judicial Court of Massachusetts, Suffolk.

September 2, 1891

COUNSEL

Lund, Jewell & Welch, for plaintiff.

John P Leahy, for defendant.

OPINION

HOLMES J.

1. The plaintiff's bill alleged a contract for work and materials with the defendant Thomas, and a conveyance of his property by Thomas to his wife in fraud of creditors, the wife sharing in the fraud. It sought to have the property applied in payment of the debt due the plaintiff. To this there was a general demurrer for want of equity and on the ground that the plaintiff had an adequate remedy at law by attachment. Pub.St. c. 172, §§ 1, 49; Id. c. 161,§ 66. The demurrer was properly overruled. A concurrent remedy in equity is given expressly by Pub.St. c. 151, § 3. ^[1] Bernard v. Myroleum Co., 147 Mass. 356, 359, 17 N.E 887. The proviso in section 2, "when the parties have not a plain, adequate, and complete remedy at the common law," does not apply to section 3, and was done away with to a great extent where it did apply by what is now section 4. It is unnecessary to invoke the later statutes. St.1887, c. 383, §§ 1, 3; St.1883, c. 223, § 17. No question of form is open.

2. The bill was filed on August 4, 1890. The demurrer was filed on August 28th, and an answer was filed the same day. Afterwards a written agreement was made between counsel that the "action may be marked for hearing for Thursday, Nov. 13 1890," and the cause was set down for hearing and was heard on December 2d in pursuance of it. The replication was not filed until December 2d. When the case came on to be heard and the parties were present with their witnesses, the defendant demanded a jury trial. The judge denied the defendant's right to a jury as the case stood, and in the exercise of his discretion declined to allow the issues to be framed, and directed the trial to proceed. We are of opinion that the course of the judge, so far as it is open to revision, was correct. It is true that when the agreement was made the demurrer had not been disposed of, and a replication had not been filed. But the filing of the replication is a formal matter, which so habitually is put off until the hearing that its absence cannot be allowed to affect the construction of the agreement. We assume in favor of the defendant that the answer did not overrule the demurrer. Fogg v. Price, 145 Mass. 513, 514, 14 N.E. 741, but still the agreement cannot be confined to a hearing on the demurrer. It is every-day practice to hear the questions of law raised by the demurrer, and the questions of fact raised by the answer at the same time, and the agreement must be taken to have contemplated this. It is shown to have done so by the fact that both parties had their witnesses present. Therefore the defendant had manifested his election to waive any right he might have to a jury. Dole v. Wooldredge, 142 Mass. 161, 179, 7 N.E. 832.

3. The only other question is whether the pleadings sustain the decree. The judge who tried the case reports that he did not find the alleged fraud to have been proved, but he did find that the defendant Thomas contracted with the plaintiff on behalf of his wife, the defendant Ellen, as undisclosed principal, and that she owed the plaintiff $515, and made a decree for that amount. The bill is ill drawn, but besides the elements mentioned as sufficient to sustain it against a general demurrer...