295 Mass. 268 | Mass. | 1936
This is a suit in equity. To the bill of complaint as amended the defendants pleaded in bar a prior adjudication of the issues raised thereby in a suit between the same parties on the same cause of action in which these issues were raised or might have been raised and, without waiving such plea, demurred to the amended bill. The case was heard on the plea and the demurrer. The record of the suit in equity of Abbott v. Bean, in the Superior Court, reported in 285 Mass. 474, was introduced in evidence in support of the plea. No other evidence was introduced. The judge found and ruled “that the cause of action in said earlier case is not the same cause of action which the plaintiff seeks to litigate in the present case and that the issues and cause of action set forth in the present bill have not become res judicata because of the decision in the earlier case,” and ordered the plea “overruled.” The judge also ordered the demurrer overruled. He made a report in these terms: “Being of the opinion that my orders and the interlocutory decrees entered in conformity therewith so affect the merits of the controversy that the matter ought, before further proceedings, to be determined by the Supreme Judicial Court, I report the question for that purpose upon the amended bill of complaint, the defendants’ demurrer and plea thereto, and my orders and decrees thereon.” The record of the suit of Abbott v. Bean, above referred to, is incorporated in the report by reference.
First. The plea was overruled rightly.
Obviously the plea was heard not merely on its sufficiency as matter of law but on the truth of the fact therein set forth, and was “overruled” in the sense that it was not sustained but was disproved. See Reilly v. Selectmen of Blackstone, 266 Mass. 503, 509. Since the plea sets up an
The suits are between the same parties. According to the allegations of the bills they arose out of the same series of transactions, which were in substance as follows: An arrangement was made between the plaintiff and the defendant Bean whereby Bean was "to obtain an option for the purchase of certain real estate in Boston. Bean caused to be executed a written agreement dated April 5, 1932, between the owners of the real estate and one Yaffe which in effect gave to Yaffe an option to purchase the real estate for $85,000 expiring July 1, 1932, "unless otherwise agreed upon in -writing.” This agreement provided that if the premises were taken by eminent domain during the period of the option the vendors should pay to the vendee the damages received over and above the option price fixed thereby and the costs of collection of such damages. Bean obtained from Yaffe an assignment to himself by a written instrument dated April 13, 1932, of Yaffe’s "right, title and interest in and to said agreement.” Thereafter, on or about April 18, 1932, by a written instrument Bean assigned to the plaintiff "seventy per cent (70%) of the net profits earned and/or realized out of and from said agreement,” and the plaintiff indorsed on such instrument his assent to the terms of the option agreement and the assignment thereof. On or before July 1, 1932, Bean advised the plaintiff that he had obtained an extension of the option agreement to September 1, 1932, and thereafter advised the plaintiff that he had obtained a further extension or extensions thereof — according to the bill in the earlier case, "the last extension running to early in October, 1932,” and according to the bill in this suit the last extension being "for a period of two months” from September 1, 1932. On July 1, 1932, however, Bean, instead of obtaining an extension' of the previous option agreement, entered into an agreement
The decree after rescript in the earlier suit dismissing the bill was a final disposition of that suit. On the doctrine of res judicata this decree, though entered upon the sustaining of the demurrers of the defendants Bean and Hamilton, would be a bar to the present suit against these defendants if the suits are for the same cause of action and the demurrers in the earlier suit were based on the merits. Such a decree is as conclusive as one entered after a decision founded on a hearing of the evidence. Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159, 205, and cases cited. Capaccio v. Merrill, 222 Mass. 308, 310. Keown v. Keown, 231 Mass. 404, 408. Rappel v. Italian Catholic Cemetery Association, 259 Mass. 550, 553. Mezoff v. United Kosher Butchers Association, Inc. 274 Mass. 174, 175. As in the case of a decree founded on evidence (see Corbett v. Craven, 196 Mass. 319; E. C. Bowman & Son Co. v. Hern, 239 Mass. 200), the bar of such a decree extends to every issue which in fact was or which in law might have been litigated in the earlier suit. See Correia v. Portuguese Fraternity, 218 Mass. 305, 307; Capaccio v. Merrill, 222 Mass. 308, 310; Northern Pacific Railway v. Slaght, 205 U. S. 122, 130-131. But the doctrine of res judicata is not applicable where the demurrer in the earlier suit was sustained on a formal or technical ground. Foster v. The
The opinion of this court in the earlier case, though not strictly a part of the record thereof (Snell v. Dwight, 121 Mass. 348), may be examined to find the ground on which the case was decided. Coyle v. Taunton Safe Deposit & Trust Co. 216 Mass. 156, 161. Diebold Safe & Lock Co. v. Morse, 234 Mass. 17, 20. Radford v. Myers, 231 U. S. 725, 730. From that opinion (285 Mass. 474, 477-478) it appears that the demurrers were sustained on the following grounds: “If the original procurement of the agreement or option gave the plaintiff any rights in the absence of any allegation of employment or consideration . . . the plaintiff accepted as a definition of his rights the assignment of April 18, 1932. Thereafter the plaintiff had even greater interest than Bean in carrying out the agreement to buy. Apparently he did nothing to raise the necessary money, but rested in the hope that a taking would be made before the expiration of the agreement. It is not alleged that any representations or conduct of Bean caused the plaintiff to omit to raise the purchase price of 885,000 required on July 1, 1932. On that day the plaintiff’s rights expired. When Bean took a new agreement in his own name on July 1, 1932, Bean was not acting as agent of the plaintiff to'negotiate any option. No fiduciary relation then existed between the plaintiff and Bean. The alleged misrepresentations of Bean as to the extension of the [first option] agreement . . . were not relied on by the plaintiff to his harm, so far as the bill shows.”
It is apparent from a comparison of the bills of complaint in the two suits that both arose out of the same series of transactions and that the objects of both were the same, that is, to establish the right of the plaintiff under an agreement with the defendant Bean to money received by his attorney in his behalf ■— now in the hands of the other defendants — by virtue of an agreement or option obtained by the defendant Bean for the purchase of certain real estate and the taking of such real estate by eminent domain by the city of Boston and payment therefor — in
Second. The demurrer should have been sustained.
The demurrer purports to state sixty-two grounds of demurrer, but the defendants’ argument is based on three fundamental grounds, (a) that the bill does not state a case for equitable relief, (b) that the plaintiff has an adequate remedy at law, and (c) that the bill is defective in form in violation of G. L. (Ter. Ed.) c. 214, § 12.
The plaintiff contends in substance that the bill states a case for equitable relief by imposing a constructive trust for the benefit of the plaintiff on the money in the hands of the defendants other than the defendant Bean. The bill does not state such a case.
‘ On the allegations contained in the bill, as to employment of the defendant Bean by the plaintiff to obtain an option to purchase the premises in question, an agreement of this defendant to obtain such an option, and an agreement of the plaintiff and this defendant with respect, to the consideration which this defendant was to receive for his services, Bean became the agent of the plaintiff to obtain such an option. He obtained such an option by virtue of the agreement between Yaffe and the owners of the premises and the assignment of April 13, 1932, from Yaffe to Bean of his “right, title and interest in and to said agreement.” (No
Though the plaintiff alleges that before the assignment of April 18, 1932, Bean stated to him that he “would obtain” extensions of the time for exercising the option to purchase the premises in question under the option agreement and prior to July 1, 1932, and again prior to September 1, 1932, made a similar statement and alleges further with respect to some or all of these statements that at the time Bean made the statements he “intended not to obtain such extension,” the plaintiff does not seek to set aside this assignment but relies upon it. See Kaufman v. Buckley, 285 Mass. 83, 85. Moreover, the facts alleged would not warrant setting aside this assignment. Bean’s statements were promissory and were not incorporated in the written assignment under seal. Such statements were not false representations of his intention with reference to “the contractual relations provided for by the agreement entered into.” Loughery v. Central Trust Co. 258 Mass. 172, 178. Ernest F. Carlson Co. v. Fred T. Ley & Co. Inc. 269 Mass. 272, 278. In this respect the statements are unlike the statements considered in Feldman v. Witmark, 254 Mass. 480. And the later statements were made after the assignment of April 18, 1932, from Bean to the plaintiff. Furthermore, the facts alleged do not show that any of Bean’s promissory statements
The facts alleged do not show such an estoppel. It is essential to an estoppel based on false representations that
In view of the conclusion reached it is not necessary to consider the other grounds of demurrer.
Third. The plea and the demurrer, already considered, were directed to an “amended bill of complaint.” The defendants contend, however, that the trial judge was in error in permitting this “amended bill of complaint” to be filed, in allowing it as an amendment to the bill previously filed, ■ and in denying the motion of the defendants to strike ■
It follows that the order overruling the plea must be affirmed, but that the order overruling the demurrer must be reversed and an interlocutory decree entered sustaining the demurrer.
Ordered accordingly.