322 Mass. 278 | Mass. | 1948
A recital of the pleadings in some detail is necessary to a proper understanding of the issues here presented. The plaintiff in his amended bill in substance alleged that he owned four parcels of real estate in Med-ford; that on September 25, 1941, he entered into a conditional sale contract with the defendant “for the installation of certain stoker furnaces in the said premises” for which he agreed to pay the sum of $1,187; that of this
The defendant in his answer asserted that the plaintiff had not lived up to the contract; that at the time of the last payment made by the plaintiff (June 3, 1942) he had expressed complete satisfaction with the stokers; that if the stokers were inadequate it was due to improper use of them by the plaintiff; and that in removing the stokers without informing the defendant of their whereabouts the plaintiff had converted them. The answer also contained a counterclaim, although not designated as such, which alleged that the plaintiff owed the defendant a balance of $485.25 with interest and “that this request for the payment of same is not to be construed in any manner as a waiver of the right, title and interest of the . . . [defendant] to the stokers in question.” The plaintiff’s original answer to this counterclaim does not appear in the record.
The judge before whom the case was tried entered a final decree dismissing the bill with costs to the defendant. The decree, however, did not dispose of the counterclaim. There was no report of the evidence nor were there any findings of fact. The plaintiff did not appeal.
On January 24, 1946, nearly three months after the entry of the decree dismissing the bill, the defendant moved “to amend his bill in the matter of a set-off” by alleging that
The issues raised by the amended, counterclaim and answer were heard before another judge who at the defendant’s request, pursuant to G. L. (Ter. Ed.) c. 214, § 23, reported the material facts found by him. The evidence is not reported. These findings may be summarized as follows: The plaintiff, who owned four apartment houses, entered into a conditional sale contract with the defendant whereby the latter was to install four “ ‘ Original Pocahontas ’ Stokers, Model HB30, at $245 each,” in the plaintiff’s apartment houses. With installation and finance charges the total price was to be $1,187. Four stokers were installed in the plaintiff’s apartment houses by the defendant, and after the down payments required by the contract were made, a balance of $567 remained which was to. be paid in twelve monthly instalments. Some of the monthly instalments were paid by the plaintiff but after June, 1942, nothing more was paid. The unpaid balance at that time was $485.52. Two of the stokers installed by the defendant were “Model HB30’s” as the contract called for and have been satisfactory. But the other two never “gave satisfactory performance” and the plaintiff seasonably notified the defendant of his dissatisfaction. After the plaintiff had hired persons to make these stokers operate better, but to no avail, he discovered that they were Model HB15 instead of Model HB30 as the contract called for. He then caused them to be removed and had new ones installed by a different contractor at a cost of $960. At the time the two stokers were removed the whereabouts of the defendant,
The principal contentions of the defendant are that he never filed or intended to file a counterclaim; and-that in any event the final decree entered in the earlier proceeding “was res judicata as to all the allegations and prayers for affirmative relief” in the bill and that the plaintiff was therefore precluded from retrying these issues in the subsequent proceeding.
We have no doubt that the portion of the defendant’s answer as amended which sought affirmative relief was in effect a counterclaim, and the judge rightly dealt with it as such. Rule 32 of the Superior Court (1932). Royal Indemnity Co. v. Perry, 296 Mass. 149, 153. Davis & O’Connor Co. v. Shell Oil Co. Inc. 311 Mass. 401, 405. Minot v. Minot, 319 Mass. 253, 270. Compare Potier v. A. W. Perry, Inc. 286 Mass. 602, 607-609. It would have been better practice if the judge who first heard the case had also dealt with the counterclaim, so that the entire controversy between the parties could have been disposed of in one final decree. But as we said in Blume v. Oil-O-Chron, Inc. 287 Mass. 52, at page 55, “A bill and a counterclaim are different causes of suit combined in one case, and ordinarily a decree disposing of only one of them is not a final decree.” It follows that the dismissal of the plaintiff’s bill without disposing of the counterclaim left the latter unaffected.
The cause of action set forth in the counterclaim was not the same as that for which the plaintiff’s bill was brought, although it would appear that some, if not most, of the issues involved in the two proceedings were the same. Thus the determination of questions of fact essential to the decree
The other questions argued by the defendant do not require discussion. The decree appealed from was right; it was amply supported by the facts found by the judge. The ' entry must be
Decree affirmed with costs.