213 Mass. 384 | Mass. | 1913
This is an action of scire facias on a judgment in which the defendant was charged as trustee. Its liability was not made absolute thereby, but it may in this proceeding set up any matter of defense which would have been available in an action against it by its alleged creditor, the original defendant. Shawmut Commercial Paper Co. v. Cram, 212 Mass. 108. Before the service of the plaintiff’s trustee writ upon it, the defendant had entered into three contracts with Dearborn Brothers and Company, defendants in the trustee action, by which the latter agreed to construct and enlarge buildings for it. The builders entered upon the performance of these contracts, but failed to complete them by reason of financial embarrassments. At their request and expense the defendant had completed the contracts. At the time of the service of the plaintiff’s trustee writ upon this defendant there was due from it to the builders $392.67, provided it was not held liable in two actions brought against it by persons who alleged that it was liable for large amounts of materials furnished to the builders in the performance of the contracts. These actions are pending and undecided, and if the defendant should be held liable in these actions nothing would be due to the present plaintiff.
It is a general rule, touching the liability of one summoned as trustee under the trustee process, founded upon reason and amply supported by authority, that he should be placed in no worse position than if the principal defendant had brought action against
It is impossible to ascertain at present the exact state of the account between this defendant and the defendant in the trustee process. Hence there must be judgment for the defendant. R. L. c. 189, § 48. Guptill v. Ayer, 149 Mass. 49.
Exceptions overruled.