Bryne v. Dorey, 221 Mass. 399

Bryne v. Dorey

221 Mass. 399 | Mass. | 1915

Braley, J.

While the terms of the assignment are very much broader in scope, the right of the assignor to recover any damages which accrued by reason of the alleged breach of the contract for support was assignable, under B. L. c. 173, § 4, and the action can be maintained in the name of the plaintiff, the assignee. Parker v. Russell, 133 Mass. 74, 75. Gilman v. American Producers’ Controlling Co. 180 Mass. 319.

The consideration of the contract for support is stated to be certain real property mortgages made by the assignor to the defendant Nellie E. Dorey, to secure the payment of two non-negotiable promissory notes for the aggregate amount of $27,000. The notes, mortgages and contract bear a common date on which they were simultaneously transferred, and, having been given and received in consideration for each other, they are to be construed as dependent promises, even if in form they are unilateral. Hunt v. Livermore, 5 Pick. 395. Stone v. Fowle, 22 Pick. 166, 174. Fort Payne Coal & Iron Co. v. Webster, 163 Mass. 134.

It follows that, until the assignor in pursuance of the agreement *404delivered the notes and mortgages, the contract for support did not become operative and binding and he could not call for performance on the part of the defendants who, if he refused to perform, had the right to recover as damages the value of the contract of which they had been deprived. Jewett v. Brooks, 134 Mass. 505, 506.

The exceptions recite that the assignor “immediately thereafter on the same day . . . repossessed himself of both of said mortgage notes .and refused to deliver them” to the mortgagee and payee, and the jury would have been warranted in finding from the proceedings in equity instituted by the defendants on November 16,1907, the record of which was introduced in evidence, that the notes were not delivered orTeturned by the assignor until May 18, 1911, in compliance with the final decree. And from his answers to the original bill, the allegations of the crossbill, and the master’s report, a further finding would have been warranted that he constantly asserted and contended that no valid contract existed of which performance by him lawfully could be demanded. The assignment having been dated the day following the date of the decree and the writ shortly after, the jury also could find that the period for which damages are demanded and were assessed is the time elapsing during the litigation made necessary by the plaintiff’s repudiation of the.agreement and retention of the notes.

If the contract, as established by the decree, imposed on the defendants, who are husband 'and wife, the duty to provide the assignor with support in accordance with its terms, the agreement on the part of the assignor to do no act which would render such support impossible resulted by necessary implication. Hapgood v. Shaw, 105 Mass. 276, 279. While the assignor, although living with them at the time of the negotiations, had been given by the contract an unlimited choice of the place or places where he would reside, yet he could not, on the one hand, insist on receiving performance, while on the other hand he retained possession and control of the consideration, denying absolutely the existence of any enforceable contract. And his persistent refusal to deliver the consideration may be treated at law as well as in equity as a justification for non-performance by the defendants. Jewett v. Brooks, 134 Mass. 505. Lowe v. Harwood, 139 Mass. 133. Cook v. Sawyer, 188 Mass. 163, 167. Parrot v. Mexican Central Railway, 207 *405Mass. 184. Neal v. Jefferson, 212 Mass. 517, 522. Holt v. Silver, 169 Mass. 435.

The defendants’ first and second requests for instructions directed the attention of the presiding judge to this question, and his refusal to give them in form or substance was erroneous.

The answer, however, not having pleaded the decree, which has the same effect as a judgment on the parties and their privies, the question whether it is a bar to the present action is not before us. Hoseason v. Keegan, 178 Mass. 247. Barnes v. Huntley, 188 Mass. 274. Richards v. Keyes, 195 Mass. 184. 1 Freem. Judgments (4th ed.) §§ 248, 249. R. L. c. 173, § 4.

But if, as the record now stands, the jury found that the assignor did not intend to repudiate the contract, the defendants, having pleaded this defence, contend that they are entitled to recoup so much of the principal and interest of the notes as might be necessary to offset any damages found due to the plaintiff, although no action for any excess, according to their tenor; over the amount required to extinguish the damages could be maintained thereafter. Carey v. Guillow, 105 Mass. 18. Cox v. Wiley, 183 Mass. 410. Batterman v. Pierce, 3 Hill (N. Y.) 171. Britton v. Turner, 6 N. H. 481. Good v. Good, 5 Watts, 116.

The plaintiff is subject to all the defences which would have been available against the assignor. R. L. c. .173, § 4. The claim for support and the claim on the notes, the jury could find were understood by the parties, not as founded upon distinct transactions, but as concurrent and mutual obligations. The assignor could not be required to make payment unless the maintenance contracted for had been furnished, and the defendants were not required to furnish it except for compensation in the form stipulated. If ultimately they are found to be responsible in damages, the assignor is also liable on the notes which were overdue and unpaid at the dates of the assignment and of the writ.

The defence of recoupment is an equitable one not dependent on R. L. c. 174, relating to set-off, and under the allegations of the answer the rights of the defendants in equity as well as at law may be considered. Dorr v. Fisher, 1 Cush. 271, 275. Stacy v. Kemp, 97 Mass. 166, 168. Jennings v. Moore, 189 Mass. 197, 203. See Puller v. Staniforth, 11 East, 232.

It is no bar that the defendants, who are jointly and severally *406bound, have been sued jointly. Where no superior rights of third persons have intervened, equity will deal with the real transaction and adjust the equities between the parties accordingly. Smith v. Felton, 43 N. Y. 419, 423. Loring v. Morrison, 15 App. Div. (N. Y.) 498. And this rule was followed in M’Hardy v. Wadsworth, 8 Mich. 349, an action at law. It being manifest that complete justice can be done and circuity of action avoided, no sound reason appears why the defendants should be compelled to resort to an independent action on the notes. Harrington v. Stratton, 22 Pick. 510, 517; Sawyer v. Wiswell, 9 Allen, 39, 42; Carey v. Guillow, 105 Mass. 18; Davis v. Bean, 114 Mass. 358; American Bridge Co. of New York v. Boston, 202 Mass. 374; Deeves & Son v. Manhattan Life Ins. Co. 195 N. Y. 324.

The plaintiff cites and relies upon Brighton Five Cents Savings Bank v. Sawyer, 132 Mass. 185, and Isenburger v. Hotel Reynolds Co. 177 Mass. 455. But in these cases the promissory notes sued on were contracts which could be enforced for the full amount without performance by the plaintiff of executory agreements which were held not to be part of the same transaction. The defendants’ third and fourth requests were denied wrongly, and the ruling made at the plaintiff’s request should have been .refused.

We have considered all the questions argued and for the reasons stated the exceptions must be sustained.

So ordered.