316 Mass. 621 | Mass. | 1944
This is- an action of contract to recover $554.42 from the defendant St, Pierre for goods sold and delivered. The action was commenced by trustee writ in which one Morris Horvitz was summoned as trustee. The Writ is dated July 9, 1942, and service was made on St. Pier-re and the alleged trustee on that day. The latter filed an answer of no funds. St. Pierre was defaulted. The plaintiff filed interrogatories addressed to Horvitz, hereinafter referred to as the trustee, who answered them under oath. Subsequently the plaintiff filed allegations in writing of material facts (see G. L. [Ter. Ed.] c. 246, § 16), and the trustee filed an amended answer setting up a counterclaim against St. Pierre totalling $912.57. ' At the close of the evidence the trustee filed a motion to be discharged which the judge allowed. A report to the Appellate Division was ordered dismissed and the plaintiff appealed.
There was also evidence that St. Pierre and the trustee entered into a contract dated June 30, 1942, whereby St. Pierre agreed to sell and convey a lot of land, in New Bedford, with a partially constructed house thereon to the trustee, and to complete the construction of the house. The contract provided for the payment of $2,000 by the trustee upon delivery of the deed, and also for other payments specifically described. A deed conveying the premises to the daughter of the trustee was recorded on July 3, 1942. There is nothing in the record to show that the $2,000 was not paid by the trustee to St. Pierre as provided in the contract. There was evidence that between June 30,1942, and September 29, 1942, St. Pierre began to neglect the supervision of the completion of this house; that he failed to complete the carpentry work provided for by the contract; that at the time of the hearings before the judge (September 29 and 30, 1942) he had abandoned all work on the house which was then being completed by the trustee; that the trustee had prior to those dates paid out $773.53 to St. Pierre on account of carpentry work; and that an additional estimated sum of $400.92 would have to be expended to complete
At the close of the evidence the judge denied two of the five requests of the plaintiff for rulings as follows: “2. The claim of the alleged trustee to be allowed certain sums in set-off against funds admitted to be in hand at the time of service of the writ upon the trustee are claims for unliquidated damages between him and the defendant, and may not be deducted or retained from the goods, effects or credits in his hands as against this plaintiff.” “5. The alleged trustee, on the weight of the evidence, is not entitled to any credits against the defendant for the labor and materials set out in his amended answer as alleged trustee.”
The action of the judge in granting the motion of the trustee that he be discharged was right. The second contract was executory and it was entirely contingent at the time of service on the trustee whether, upon the completion of the contract and after the mutual rights and obligations of the parties thereto had been adjusted, anything would be due to St. Pierre from the trustee. And “money cannot be attached by trustee process unless when service is made on the trustee it is due absolutely and without any contingency except that of time.” Krogman v. Rice Brothers Co. 241 Mass. 295, 300-302, and cases cited.
Order dismissing report affirmed.