235 Mass. 471 | Mass. | 1920
The record recites the following facts concerning which there is no dispute: The plaintiff on April 14,1919, sued out of the Municipal Court of the City of Boston a writ of summons and attachment by trustee process in an action of contract wherein he is described as of “said Boston,” and the defendants Jacob A. Goodman and Lazure L. Goodman are named as “ copartners, doing business as the Goodman Hosiery Co. as the Keystone Knitting Mills and as the Dixie Hosiery Mills and having a usual place of business in Burlington, in the State of N. Carolina,” while the trustee, the Commercial Trading Company, is stated to be “a corporation duly established by law and having a usual place of business in Boston aforesaid, in the County of Suffolk.” The funds which were alleged to be the property of the principal defendants having been duly attached they dissolved the attachment by giving in due form a bond signed by them as principals and an indemnity company as surety, which having set forth among other recitals that whereas the plaintiff has caused the goods, effects and credits “of said J. A. Goodman and L. L. Goodman in the hands or possession of Commercial Trading Company to the value of fifteen
The case then came on for trial, and the trial judge was asked by the defendants to rule that upon all the evidence the plaintiff’s action should be dismissed; that there is no property of the defendants within the jurisdiction of the court which could be come at to be attached; that the court has no jurisdiction over the defendants, and that upon all the evidence the writ in the case at bar should be abated. The judge overruled the plea in abatement, and declined to give the rulings, and at the defendants’ request reported his refusal to the Appellate Division which decided that the action should be dismissed, and the plaintiff appealed to this court.
We, are, however, unable to discover any error of law in the proceedings before the trial judge. The attachment appears to have been effectual, and the plaintiff, although no personal service had been made on the defendants, could have recovered a valid judgment to secure the application of the property so attached to
The case of Merriman v. Currier, 191 Mass. 133, relied upon by the defendants as being to the contrary is not in conflict. That action was a petition inserted in a writ of original summons with an order for attachment as provided in Pub. Sts. c. 192, § 17, now R. L. c. 198, § 17, to enforce a lien on a vessel while the vessel was within the jurisdiction of the court. But no attachment in fact was made. It was there said that, the proceeding being in rem and the attachment being wholly inapplicable to the case the bond given to dissolve did not change the character of the action, nor did the bond in any way recognize the validity of the attachment. It refers in its recitals to the process as “purporting to be a process of attachment under the statute,” and calls the attachment a “purported attachment.” In the present case the attachment was directly applicable to the cause of action. It was the only procedure by which the plaintiff could enforce his claim. And. the bond as we have said states and the record shows, that a valid attachment had been made of the defendants’ goods, effects and ' credits which they wished to have released. “The plaintiff, by
The amendment joining Abraham Goodman does not affect the plaintiff’s right to recover judgment against the defendants who had appeared. The declaration is on an account annexed to recover commissions on orders secured by the plaintiff, and accepted by the defendants. A contract by copartners within the scope of the firm’s interests or business binds all and each of them. Allen v. Wells, 22 Pick. 450. Ashley v. Dowling, 203 Mass. 311. Trenton Potteries Co. v. Oliphant, 13 Dick. 507. Amis v. Smith, 16 Pet. 303. And under R. L. c. 177, § 6, although the action as amended is against three persons as partners, while only two can be held, as Abraham Goodman not having been served with process or appeared generally is not within the jurisdiction of the court, yet judgment may be entered against Jacob A. Goodman and Lazure L. Goodman alone, and no amendment of the declaration is required. “The legal effect of the statute is, that such discrepancy between the contract declared on, and that proved, shall be deemed no variance.” Wiggin v. Lewis, 12 Cush. 486. Taft v. Church, 162 Mass. 527, 533. Monk v. Parker, 180 Mass. 246, 249. See Phelps v. Brewer, 9 Cush. 390.
So ordered.