Weil v. Raymond
| Decision Date | 01 July 1886 |
| Citation | 142 Mass. 206,7 N.E. 860 |
| Parties | WEIL v. RAYMOND and others. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John C. Coombs and Frank Burke, for plaintiff.
R. Lund and W.C. Coggswell, for defendants.
As the bill was filed since the passage of St.1883, c. 223, and prays for relief, the answer, by the tenth section of that statute, "shall not be sworn to," and the plaintiff is entitled to discovery from the defendants only upon interrogatories, in the same manner as in an action at law. Pub.St. c. 167, §§ 49-60; Id. c. 151, § 8.
If George J. Raymond has any interest in the leasehold estate which can be taken by a creditor in satisfaction of his debt it is a legal estate, which can be attached in an action at law against him, and, if judgment is obtained, execution may be levied upon it. Pub.St. c. 171, § 51; Id. c. 161 § 61 et seq.; McNeil v. Ames, 120 Mass. 481. As was said in Schlesinger v. Sherman, 127 Mass. 206: This is the "entire remedy which the legislature intended to give for applying to the payment of a debt any title in real estate, or the rents and profits thereof, which is of such a nature as to be capable of being taken on execution at law." The bill does not set out a copy of the lease or its terms further than to state that it "is unassignable by the lessee without the written consent of the said lessor, and is terminable, at the election of the said lessor, if said lessee shall be declared insolvent, or any assignment of his property shall be made for the benefit of his creditors." An assignment by operation of law is not a breach of a covenant not to assign, (Smith v. Putnam, 3 Pick. 220;) and if, on inspecting a copy of the lease, it should appear that by its terms the interest of the lessee ceases if it were attached or taken on execution, this is the effect of the contract, and is not a ground for equity jurisdiction. There is indeed no averment that George J. Raymond has sublet the property, or is in the receipt of any rent therefrom.
The plaintiff sues to recover a debt for merchandise sold, and this debt has not been reduced to a judgment, and therefore the case is not within the general equity powers of the court to subject property, on which an execution at common law cannot be levied, to the satisfaction of a judgment obtained at law. Carver v. Peck, 131 Mass. 291.
The chattels which the plaintiff seeks to have applied to the payment of his debt are property which, from its nature, can be come at to be attached and taken on execution in a suit at law, if the property of the debtor and the case stated is not within Pub.St. c. 151, § 1, cl. 11. The case discloses no equitable interest of either George J. Raymond or his wife in the chattels which cannot be attached at law.
If the plaintiff sold the merchandise to George J. Raymond under the name of George J. Raymond & Co., he can sue him therefor. If, in buying the property, George J. Raymond acted as the agent of his wife, an undisclosed principal, the plaintiff can also sue her. He cannot sue both jointly; but it is said that he can proceed against each separately, although not to judgment against both; for a judgment obtained against one, although unsatisfied, is a bar to an action against the other. Raymond v. Crown & Eagle Mills, 2 Metc. 319; Kingsley v. Davis, 104 Mass. 178; Curtis v. Williamson, L.R. 10 Q.B. 57; Priestly v. Fernie, 3 Hurl. & C. 977.
The plaintiff's difficulty is not so much in determining whom to sue as determining beforehand who owns the chattels which he wishes to attach in the suit; but the statutes have not made this a ground of jurisdiction in equity. If the chattels have been mortgaged or pledged to Partridge & Co. by the plaintiff's debtor, or if Partridge & Co. have a lien upon them, and the general property is in the plaintiff's debtor, they can be attached in an action at law. Pub.St. c. 161, § 74 et seq.
The plaintiff contends that the certificate of Hattie D. Raymond that she proposes to do business on her separate account under the style of George J. Raymond & Co., was filed by her in fraud of the statute and of his rights. The legislature has not forbidden a married woman from doing business under a firm name which contains the name of her husband, and under which he had previously done business. If the certificate is not such as Pub.St. c. 147, § 11, requires, the effect is that the property employed in the business is liable to be attached as the property of the husband, and he is liable...
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