216 Mass. 156 | Mass. | 1913
1. The single justice found that the final decree dismissing the bill of Nichols against these defendants, reported in 203 Mass. 551, was entered on the ground of a defect in the preliminary proceedings, and not upon the merits. But it is contended that the entry of the decree “Bill dismissed,” after a hearing upon the merits, is of itself an absolute bar to the maintenance of another bill between the same parties for the same cause of action, and that evidence to show that the decree was entered, not upon the merits, but for some other reason which did require a dismissal of the bill but did not go to the real merits of the case, cannot be received. Reliance for this contention is put mainly upon the cases of Bigelow v. Winsor, 1 Gray, 299, and Foote v. Gibbs, 1 Gray, 412. Some of the language used in those opinions, taken by itself, would support this position. In the first of them, it was said that “ a plea in bar, stating a dismissal of a former bill, is conclusive against a new bill, if the dismissal was upon hearing, and if that dismissal be not, in direct terms, without prejudice.” But in that case, as the opinion goes on to show, the decree in the former suit stated the grounds upon which it was made and thereby showed that it had been entered upon the merits and that the point afterwards sought to be raised had
The decision in Nashua & Lowell Railroad v. Boston & Lowell Railroad, 164 Mass. 222, rests upon the same ground, though there it was a decree in favor of the plaintiff which was explained, and the doctrine was carried much further than here is necessary.
In Newburyport Institution for Savings v. Puffer, 201 Mass. 41, it was held that if a decree of “Bill dismissed” might have been entered upon either one of two grounds, evidence could be introduced to show which was the actual ground, and the decree would nót be necessarily conclusive upon all grounds in other litigation between the parties. And the reasoning of the court in Newhall v. Enterprise Mining Co. 205 Mass. 585, Leverett v. Rivers, 208 Mass. 241, and Cote v. New England Navigation Co. 213 Mass. 177, goes in the same direction.
It sufficiently appears by the record of the Nichols case the rescript, which is a part thereof, and the opinion of the court (203 Mass. 551) which is referred to in the rescript, that the decree of “Bill dismissed” was entered by reason of the fact that the execution on which the bill was grounded had been returned too early to the court; so that there was in the preliminary proceedings no sufficient foundation for the bill, and the real merits of the suit were not and could not have been considered.
Nothing in what we have said is at variance with the well settled rule that between the parties and their privies a judgment or final decree upon the merits includes everything that was or might have been litigated in the case as it came before the court. Corbett v. Craven, 193 Mass. 30, and cases cited.
2. The remedy is not barred by any statute of limitations. The right of action did not arise until the execution against the company had been returned duly to court unsatisfied. Nichols v. Taunton Safe Deposit & Trust Co. 203 Mass. 551. The bill was brought within less than four months after' that time. Even if the suit was for the recovery of a penalty or forfeiture, which we do not intimate, it was brought seasonably. Nor can we say as matter of law that loches such as to prevent the maintenance of the bill is disclosed; and the question of fact is settled by the finding of the single justice made upon evidence which has not been reported.
3. The bill ^originally was brought by a single creditor of the corporation, in behalf of himself and all other creditors, and is now prosecuted by the receiver under the provisions of St. 1905, c. 228. But it is settled by the Nichols case (203 Mass. 551, 555) that the liability of the stockholders is the same as if the suit were still controlled and prosecuted by the single creditor. Moreover the liability of these stockholders is not joint and several, like that created by R. L. c. 110, §§ 58, 59.
The amount for which the stockholders are to be held will be accordingly something less than $30 per share. The report does not give us the means of determining this amount. Probably the parties will be able to agree upon it. If not, it must be found by a single justice.
5. The single justice correctly ruled that the receiver could set off the amount due upon Field’s ten shares against the claim of Field’s estate for the money due from the corporation, but that recovery against his estate was barred otherwise. This requires no discussion.
6. The ruling that White was liable as stockholder was correct. Richmond v. Irons, 121 U. S. 27, 58. Apsey v. Whittemore, 199 Mass. 65.
7. All the stockholders, except Field’s administrator with the will annexed and except those as to whom the bill has been dismissed, appear to be liable, but only in severalty, for the respective amounts proportioned to the number of their shares and to be determined as has been stated. But they are jointly and severally liable for the costs of the suit. Burnap v. Haskins Steam-Engine Co. 127 Mass. 586. A decree will be entered charging each defendant, except as has been stated, with the amount of his in
Decree accordingly.
Repealed by St. 1903, c. 437, § 95. See now §§ 33-38 of that statute.