Stuart v. Roche

• Decision Date: 29 May 1928
• Citation: 161 N.E. 624,264 Mass. 63
• Parties: STUART v. ROCHE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

264 Mass. 63

161 N.E. 624

STUART

v.ROCHE.

Supreme Judicial Court of Massachusetts, Norfolk.

May 29, 1928.

Appeal from Superior Court, Norfolk County; Lummus, Judge.

Suit by Alice Stuart against Peter T. Roche. Decree for defendant, and plaintiff brought a petition for leave to file a bill of review. From a decree dismissing the petition, plaintiff appeals. Affirmed.

Frank D. McCarthy, of Boston, for petitioner.

J. Ward Healey and Ralph R. Harris, both of Leominster, and Charles D. Bent, of Gardner, for respondent.

BRALEY, J.

It appears from the allegations of the original bill that the plaintiff in the original suit was the owner of a horse known as ‘Nicholas J. Hayes,’ and that the defendant, who was engaged in the business of buying and selling horses, owned a horse known as ‘The Whippet.’ The parties on August 29, 1927, made an even exchange of the horses under which the plaintiff acquired possession and title to the horse ‘Whippet,’ and the defendant acquired title and took possession of the horse ‘Nicholas J. Hayes.’ The defendant in the original suit on September 3, 1927, returned the horse he had received and demanded of the plaintiff a return of the horse ‘Whippet.’ It is then therein alleged:

‘That the petitioner [plaintiff] intends to exhibit said Whippet in various horse shows throughout the commonwealth and that the respondent [defendant] has threatened the petitioner that he will prevent her from exhibiting the ‘Whippet’ or any other horse owned by the petitioner through legal proceedings or otherwise.'

The prayers are for an injunction restraining the respondent from interfering with the plaintiff's possession; and that he be decreed to recognize her title which she asks to have established. The defendant's answer alleged that he had been induced by the plaintiff's fraud to make the exchange, and asked for affirmative relief as provided in Equity Rule 6 (1926). The trial on the merits resulted in a final decree for the defendant filed October 7, 1927. It read as follows:

‘1. That the defendant was induced to exchange a horse known as the Whippet, which was owned by him, for a horse known as Nicholas J. Hayes, owned by the plaintiff, upon the warranty of the plaintiff that the horse known as Nicholas J. Hayes was a sound horse.

‘2. That the horse known as Nicholas J. Hayes was not a sound horse, and that the defendant had, and still has, a right to rescind the exchange and repossess himself of the horse known as the Whippet and has elected such right of rescission.

‘3. That the defendant having restored the horse known as Nicholas J. Hayes to the plaintiff, the plaintiff has no title or ownership in the horse known as the Whippet, but is legally bound to restore said horse known as the Whippet to the...