Strout v. United Shoe MaChinery Co.

• Decision Date: 24 May 1913
• Parties: STROUT v. UNITED SHOE MACHINERY CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

215 Mass. 116

102 N.E. 312

STROUT v. UNITED SHOE MACHINERY CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 24, 1913

COUNSEL

Whipple Sears & Ogden and Dundar & Rackemann, all of Boston, for plaintiff.

Coolidge & Hight, of Boston, for defendants.

OPINION

RUGG C.J.

This case now comes before us on a report from a judge of the superior court who, after the decision in 209 Mass. 539, 95 N.E. 929, ordering the bill to be dismissed, allowed a motion substituting Charles A. Strout, trustee of the Goddu Sons Metal Fastening Company, as party plaintiff and an amended bill of complaint. The case has been elaborately and ably argued in behalf of the defendant, but in the view we take the points upon which the decision hinges lie within narrow compass.

The defendant challenges the power of the court to allow such an amendment. The power of the court in this regard is very broad. R. L. c. 173, § 48, although not in express terms governing suits in equity, has been treated as applying to them and stating general principles touching amendments in equity. Drew v. Beard, 107 Mass. 64, 76; King v Howes, 181 Mass. 445, 63 N.E. 1062; Day v Mills, 213 Mass. 585, 587, 100 N.E. 1113, and cases cited. At the lowest the practice prescribed by the statute is adopted by analogy in equity. The allowance of the amendment by the court is made 'conclusive evidence of the identity of the cause of action.' Tracy v. Boston & Nor. St. Ry., 204 Mass. 13, 17, 90 N.E. 416, 417. Moreover, although no evidence was offered before the trial judge he heard statements of respective counsel. These statements are not reported and it is impossible for us to review the action of the judge, which must have been based in part upon such statements and the inferences rationally drawn from them. Under these circumstances it is not necessary to analyze the amended bill nor compare it nicely with the one originally filed. It is enough to say that the damages which accrued to the original plaintiffs and which they sought in their own names can be recovered only by the corporation in which they were stockholders, and perhaps only in the present form of action. It was competent for the court to grant the amendment even after rescript ordering final judgment. Merrill v. Beckwith, 168 Mass. 72, 46 N.E. 400.

The motion of Mr. Strout must be assumed to have been made with the consent and approval if not by the active co-operation of...