Todd v. Pearce
| Decision Date | 06 July 1935 |
| Citation | 291 Mass. 455,197 N.E. 156 |
| Parties | TODD v. PEARCE et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from Superior Court, Suffolk County; Donnelly Judge.
Suit by William G. Todd against Arthur P. Pearce, Jr., and others. To review an adverse judgment, plaintiff brings exceptions.
Exceptions overruled.
W. G. Todd, of Boston, pro se.
E. A. Counihan, Jr., and G. A. McLaughlin, both of Boston, for respondent.
This is a bill in equity to reach and apply under G. L. (Ter. Ed.) c. 214, § 3(7), and is not within the general principles of equity jurisdiction. Wilson v. Martin-Wilson Automatic Fire-Alarm Co., 151 Mass. 515, 517, 24 N.E. 784,8 L.R.A. 309; Stockbridge v. Mixer, 215 Mass. 415, 102 N.E. 646. The equitable jurisdiction conferred by clause 7 depends not on the nature of the plaintiff's debt or cause of action, but upon the existence of some property (here stock in private corporations) which cannot be attached or taken on execution. When there is a controversy as to the amount of the debt sought to be applied the defendant has a right to have a trial by jury on the main issue of his alleged indebtedness to the plaintiff. Merchants' National Bank v. Moulton, 143 Mass. 543, 10 N.E. 251.
In the instant case the plaintiff is an attorney at law practicing his profession in the city of Boston in this Commonwealth. The defendant is a resident of Brookline in said Commonwealth. The fourth paragraph of the plaintiff's bill of complaint charges ‘ that during the month of March, 1930, the respondent Arthur P. Pearce, Jr., employed and retained your complainant to act for him in a professional capacity; that your complainant accepted said employment and thereupon engaged upon the prosecution of the matters which had been placed in his hands, it being understood and agreed between them that the said respondent would forthwith pay to your complainant the sum of One Thousand Dollars ($1,000) as a retaining fee, and that the total amount of your complainant's fee was to be contingent and dependent upon the success of the complainant's efforts in said respondent's behalf.’ The fifth paragraph charges ‘ that the matters upon which your complainant has been engaged on account of said respondent were brought to a conclusion by your complainant, and that the contentions advanced by him in behalf of said respondent were concluded in favor of the said respondent.’ The eighth paragraph of the bill of complaint charges ‘ that the respondent Arthur P. Pearce, Jr., is the owner and record holder of all the common stock in the said respondent corporations, Arthur P. Pearce, Jr., Inc., and A. P. Pearce, Jr., Inc., which stock he does not intend to apply to the satisfaction of any judgment which your complainant may secure against him.’ The bill seeks to establish the debt, prays for injunctive relief against the transfer of the described stock, that the stock be applied to the satisfaction of the alleged debt, and for general relief.
The defendant Arthur P. Pearce, Jr. (herein called the defendant) denies the allegations contained in paragraph four of the plaintiff's bill of complaint, and further answering says The defendant by way of counterclaim made further answer as follows: ‘ * * * On or about June 2, 1930, he gave the said complainant a check for Five Thousand (5,000) Dollars, Twenty-five hundred (2,500) Dollars of which was to pay his fee for certain other professional services and the balance * * * to be paid to William Flaherty, Esquire, for certain professional services, that said complainant has failed, refused and neglected to pay said Flaherty said sum of Twenty-five Hundred (2,500) Dollars, although said Flaherty has made due demand upon the said complainant for payment * * * therefor the respondent Arthur P. Pearce, Jr., says the complainant owes him the sum of Twenty-five Hundred (2,500) Dollars together with interest thereon from June 2, 1930.’ The defendant admitted that he is the owner of the stock described in the bill of complaint. By leave of court the defendant made further answer in great detail which it is not necessary to consider in the determination of the issues here presented.
By decree of the Superior Court dated January 29, 1932, certain issues were framed for trial by jury on the law side of the court. On May 19, 1932, at which time a jury was impaneled to try said issues, by agreement of the parties new issues were framed. These issues were as follows: At the trial on the issues the jury returned a verdict in the sum of $1,250 for the plaintiff on issue numbered ‘ 1’ and found for the defendant on issue numbered ‘ 2.’ The case for the plaintiff is before this court on two issues as stated in his brief: (1) Did the trial judge err in refusing to permit the plaintiff's expert witness to give his opinion, hereinafter referred to, and (2) Should the trial judge have given the instructions and rulings contemplated by the plaintiff's requests numbered 9 and 11, respectively; and if so, were they covered by the judge's charge?
Before discussing the exceptions of the plaintiff it is necessary to consider the contention of the defendants that ‘ this bill of exceptions is prematurely before the court and ought not to be determined at this time,’ for the reasons that ‘ the proceeding before the court is * * * an equity proceeding, and, in order to bring exceptions properly before the court, the proceeding must have proceeded to a final decree’ ; that ‘ in the instant case, all that exists are exceptions claimed and perfected at a trial of jury issues on the law side of the court’ ; that ‘ there has never been any decree entered predicated upon the answer of the jury to the jury issues.’
As above stated, bills to reach and apply under G. L. (Ter. Ed.) c. 214, § 3(7), are really common law cases with equitable relief. Stockbridge v. Mixer, 215 Mass. 415, 102 N.E. 646; Witherington v. Eldredge, 264 Mass. 166, 172, 162 N.E. 300. It was said by Knowlton, C. J., in Crocker v. Crocker, 188 Mass. 16, 20, 73 N.E. 1068, 1070,‘ When such issues are framed, and until they are disposed of by the court, they carry with them the ordinary methods of trial by jury in an action at common law.’ In the case at bar the issues themselves present no case of equitable jurisdiction. The findings of the jury upon the issues submitted were conclusive on the parties unless set aside by the trial judge or by this court on exceptions. The verdict of the jury on the first issue against the contention of the excepting plaintiff, the defendant not excepting to the verdict on either issue, will settle the entire controversy involved in the case unless the plaintiff can prosecute his exceptions. The admission of the defendant that he is the sole owner of all the corporate stock sought to be applied in this suit leaves no controversy as to the fund to be applied to the debt when ascertained, and has no evidential value upon the issue of the defendant's indebtedness to the plaintiff.
Disregarding the exceptions, it is plain the case considered as an action at law was ripe for final determination when the verdict was returned.‘ When issues of fact are submitted to a jury in an equity suit, and a verdict is rendered upon the issues and is not set aside, the verdict is regarded as settling the facts so put in issue.’ Crocker v. Crocker, 188 Mass. 16, 19, 73 N.E. 1068; Siciliano v. Barbuto, 265 Mass. 390, 393, 164 N.E. 467; Knox v. Springfield, 273 Mass. 109, 110, 173 N.E. 439. See Ellis v. Lyford, 270 Mass. 96, 100, 169 N.E. 800. Every issue raised by the pleadings has been resolved against the plaintiff provided his exceptions are overruled. The final decree in the nature of things cannot open to him new opportunity for objection or controversy. In these exceptional...
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