280 Mass. 559 | Mass. | 1932
This suit in equity against George R. Stobbs, executor of the will of Carl Bopney, and the members of the firm of Clark, Childs and Company was begun December 1, 1931. The bill alleges that Bonney died October 30, 1928, and that Mr. Stobbs was appointed executor and gave bond which was approved November 21, 1928.
The bill alleges also that the deceased had two accounts with Clark, Childs and Company, a “commodity account” and a “security account,” that at the moment of his death there was a deficiency in the “commodity account” in the amount of $4,000 which was made good upon transfer of credits from the plaintiff’s account with Clark, Childs and Company, that this transfer was made at a time when the plaintiff was ignorant of the death of. Bonney, that after the death of Bonney his executor ordered a sale of bonds held as collateral security on the “security account” and demanded the credit balance on the two. accounts which then amounted to $2,808 as: a result of the transfer of credits by the plaintiff and the sale of the bonds held as security, that an action was brought by the executor to recover this amount from Clark, Childs and Company who
The plaintiff prays that the executor be restrained from collecting the judgment obtained by him against Clark, Childs and Company, that the plaintiff have judgment against the executor for the amount due him, and that Clark, Childs and Company be ordered to pay to the plaintiff the amount found due from them to the executor.
The executor demurred on the grounds that the bill does not set forth a cause of action entitling the plaintiff to relief in equity, and that the cause of action is barred by the statutes of limitations set forth respectively in G. L. c. 197, § 9, and in G. L. c. 260, § 11. An interlocutory decree was entered sustaining the demurrer and later a final decree dismissing the bill. The plaintiff appealed.
The demurrer was sustained rightly on the ground that the bill does not set forth a cause of action.
On the allegations of the bill the transfer of credits from the plaintiff’s account was made to discharge a debt of the deceased to Clark, Childs and Company. Such a transfer was the equivalent of payment in cash (Ryan v. Whitney, 257 Mass. 218, 225), but, so far as appears in the bill, the payment by the plaintiff was purely voluntary. There is no allegation that the plaintiff was the agent of the executor, or of the deceased before his death, that the plaintiff acted at the express request of the deceased or his executor, or that the payment was subsequently ratified by the executor. No facts are set forth showing any legal or moral duty on the part of the plaintiff to pay the debt or implying a request by the deceased or his executor for payment thereof. The effect of such allegations need not be considered.
It is settled that an action at law will not lie to obtain reimbursement of a pure volunteer for the gratuitous payment by him of a debt of a defendant. Acceptance and
The plaintiff was not the less a volunteer, as between himself and the executor, because of his ignorance of the death of Bonney. He was not, so far as is disclosed by the bill, misled in this particular by the executor. Nor does it appear that the fact in regard to which he was mistaken affected any supposed obligation on his part to make payment to Clark, Childs and Company, for no facts are alleged which, if Bonney had been living, would have given rise to an obligation of the plaintiff to do so. The mistake of fact, therefore, at most, affected the desirability of his making payment. See Williston on Contracts, § 1569, at pages 2775-2778. No facts are set forth by reason of which Bonney would have been bound to reimburse the plaintiff if the payment had been made in Bonney’s lifetime. And the plaintiff has no greater right against Bonney’s executor. The plaintiff’s ignorance of Bonney’s death did not give him the right to substitute himself as creditor of the estate of Bonney for the original creditor. See Massachusetts Mutual Life Ins. Co. v. Green, 185 Mass. 306.
The plaintiff stands no better in equity than at law. This court, without excluding the possibility of other grounds for relief (see Newell v. Hadley, 206 Mass. 335, 342), has ordinarily based equitable relief where the plaintiff’s money was paid by him or used for the benefit of a third person on the principle of subrogation of the plaintiff to the rights of the third person against the defendant. This principle, however, is inapplicable where the plaintiff, as here, is merely a volunteer. See Newell v. Hadley, 206 Mass. 335, 340, 343; Fitcher v. Griffiths, 216 Mass. 174, 177; Ricker v. Ricker, 248 Mass. 549, 552. Compare Skinner v. Tirrell,
The result is not affected by the fact that the plaintiff, who sues as an individual, made the payment in question to a firm of which he was a member.
It is unnecessary to consider the other grounds of demurrer.
Interlocutory decree affirmed.
Final decree affirmed with costs.
