Weinberg v. Goldstein

• Decision Date: 17 April 1922
• Citation: 135 N.E. 126,241 Mass. 259
• Parties: WEINBERG et al. v. GOLDSTEIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

241 Mass. 259

135 N.E. 126

WEINBERG et al.

v.GOLDSTEIN.

Supreme Judicial Court of Massachusetts, Suffolk.

April 17, 1922.

Exceptions from Superior Court, Suffolk County; Patrick M. Keating, Judge.

Action of contract or tort by Morris Weinberg and others against Lazarus Goldstein for damages caused by the institution of a suit in equity against plaintiffs and one Burrows, in which an interlocutory injunction restraining plaintiffs from taking possession of premises under a lease to them from the owner was granted. Directed verdict for defendant, and plaintiffs bring exceptions. Exceptions overruled.

The declaration alleged that, as a result of defendant's wrongful acts in instituting and prosecuting the former suit, they were wrongfully deprived of the use of the premises from August 17, 1919, until about February 1, 1920, and were caused to suffer and incurred loss of profits, trouble, annoyance, legal expenses, counsel fees, and other expenses and damages, for which ordinary costs would be inadequate. The court excluded evidence as to when plaintiffs were to get possession of the premises, their loss of earnings during the period they were deprived of the lease, defendant's profit during such time, the amount paid for counsel fees in the equity suit, it being admitted that such amount was reasonable, that in the equity suit, when a substitute bill of complaint was offered, plaintiff requested some provision or bond to indemnify them against loss or damages, and that the court reserved the matter until the trial on the merits, and that on the trial they claimed to be heard on the question of damages, and the court declined to hear them. The exceptions were to such rulings and to the direction of the verdict.

J. W. Tushins and Israel Ruby, both of Boston, for plaintiffs.

Putnam, Bell, Dutch & Santry and Coleman Silbert, all of Boston, for defendant.

CARROLL, J.

The plaintiffs, who, with one Burrows, were the defendants in Goldstein v. Burrows, 237 Mass. 79, 129 N. E. 389, after the decree dismissing the original bill was affirmed and the decree entered denying the cross-bill without prejudice, brought this action in tort or contract against Goldstein, the plaintiff in Goldstein v. Burrows. The declaration in this action alleges in substance that the plaintiffs were lessees of certain premises under a written lease, the term beginning August 18, 1919; that the defendant in the equity suit, on August 11, 1919, secured an injunction restraining the plaintiffs from taking possession of the premises; that on December 23, 1919, a final decree was entered dismissing the bill without prejudice to the rights of the plaintiffs in this action to bring an action to recover possession; that a decree was entered on the cross-bill in the superior court in favor of the plaintiffs in this action in the sum of $800 and costs. Thereafter, upon appeal to the Supreme Judicial Court, a decree was entered dismissing the bill of complaint and dismissing the cross-bill without prejudice. The declaration further alleges that--

‘As a result of the wrongful acts of the defendant in instituting and prosecuting such proceedings, they were wrongfully deprived of the use of their premises and leasehold to which they were entitled under their lease from August 17, 1919, until about February 1, 1920, and were...