256 Mass. 246 | Mass. | 1926
The motion of the defendant to dismiss the suit for want of.due service of process was denied rightly. Moors v. Ladenburg, 178 Mass. 272. Perry v. Pye, 215 Mass. 403. G. L. c. 227, §§ 2, 3, 4. The defendant on denial of the motion demurred to the bill on the ground that, “no cause of action within the equity jurisdiction of the court” was stated, and that if “the plaintiff has any remedy, its remedy at law is plain, complete and adequate.”
The plaintiffs brought an action at law against the defendant to rescind a contract and recover back the purchase price they had paid for certain shipments of merchandise, to which the defendant answered generally, and also filed a declaration in set-off. In the trial court at the close of the evidence the parties stipulated as follows:
“It is hereby stipulated that the court having ordered a verdict for defendants on plaintiff’s claim shall report the case on all the evidence for the consideration of the full court. If the ruling of the court that the plaintiff is not entitled to go to the jury be affirmed judgment shall be entered for defendant on the plaintiff’s claim. And judgment shall be entered for the defendant-plaintiff in set-off for the amount claimed in its set-off with interest as if a verdict had been rendered as of November 1, 1923.
“If the plaintiff was entitled on the evidence to have the plaintiff’s case submitted to the jury judgment shall be entered for the plaintiff for the amount claimed in the plaintiff’s declaration with interest as if a verdict had been ren*249 dered for plaintiff as of November 1, 1923, and judgment against defendant on its claim in set-off.”
The verdict for the defendant having been sustained by this court, judgment for the defendant for the amount claimed in the declaration in set-off has been entered on which execution issued which is now in the hands of the sheriff to be levied on the property of the plaintiffs. Adams v. Grundy & Co. Inc. 252 Mass. 135. The stipulation that, if the verdict for the defendant was sustained, judgment for the defendant should be entered on the plaintiffs’ claim and for the full amount in set-off, not only was binding on the parties but became the law of the case. It is alleged and the demurrer admits that the plaintiffs should be credited with $43,688.32 due under the original agreement, and the present bill is brought asking that the amount of credits be established and execution therefor issue which should be set off against the execution obtained by the defendant. The inherent power of a court of equity, quite apart from the provisions of G. L. c. 227, § 2, to allow such set-off is settled on principle and authority. Holbrook v. Bliss, 9 Allen, 69. Merrill v. Cape Ann Granite Co. 161 Mass. 212. Perry v. Pye, supra. Cromwell v. Parsons, 219 Mass. 299. And, where the parties have made an agreement for a set-off, which was not done in the case at bar, equity will enforce specific performance. Holbrook v. Bliss, 9 Allen, 69, 77. Abbott v. Foote, 146 Mass. 333, 334. While the defendant has removed from the jurisdiction and become a non-resident, its removal does not of itself establish the right to a set-off in equity where the defendant is not alleged to be insolvent. Isenburger v. Hotel Reynolds Co. 177 Mass. 455. Perry v. Pye, 215 Mass. 403, 413, 414.
The question, whether the plaintiffs should be allowed to amend their bill after the decision on the demurrer, rested in the sound discretion of the court, which is not shown to have been so exercised as to amount to a denial of justice. Reno v. Cotter, 239 Mass. 581, 583.
The orders denying the motion to dismiss, sustaining the demurrer, and overruling the motion to amend are
Affirmed.