Cromwell v. Parsons, 219 Mass. 299

219 Mass. 299 | Mass. | 1914

Sheldon, J.

It is true that these two demands, not being between exactly the same parties, could not have been set off against each other in the original actions. Nor, for the same reason, could the plaintiff require that the executions should be set off against each other under the provisions of R. L. c. 177, § 27. For that very reason, if he has any remedy, it must be in equity. Wolcott v. Jones, 4 Allen, 367, 369.

But equity will enforce a set-off of demands like these whenever, by reason of the circumstances of the particular case, this is necessary to avoid injustice or to give effect to the equitable rights of the party seeking such set-off, and one of such circumstances is the bankruptcy or insolvency of the other party. The doctrine was applied and the rule was stated by the court in Merrill v. Cape Ann Granite Co. 161 Mass. 212, 217, with citation of some of the decisions that support it. The rule in cases of bankruptcy was stated in Gray v. Rollo, 18 Wall. 629, and the general rule was stated in Wolff v. Jasspon, 126 Mich. 11, 15, though held not to be applicable to the facts of these cases. See also to the same effect Pond v. Smith, 4 Conn. 297; Porter v. Roseman, 165 Ind. 255; Farris & McCurdy v. Houston, 78 Ala. 250; Tucker v. Oxley, 5 Cranch, 34; Ex parte Hanson, 12 Ves. 345; S. C. 18 Ves. 232; Vulliamy v. Noble, 3 Mer. 593, 618.

On the facts, these were really mutual transactions between the same parties, all growing out of the charter of a vessel by the plaintiff to Jacobs. The liability of Thomas A. Cromwell to Jacobs arose merely from Thomas’s acts as agent for the plaintiff, and was one from which the plaintiff was under a duty to protect Thomas, so that in equity the plaintiff was the principal debtor to Jacobs, and Thomas was merely a surety for the plaintiff. The plaintiff as a joint debtor to Jacobs would have had the inchoate right in equity to pay Jacobs in full and to appropriate Jacobs’s indebtedness to him for that purpose; and upon Jacobs’s bankruptcy this might become enforceable in equity. Lowell on Bankruptcy, § 273, and cases there cited. The equity of the plaintiff as a principal debtor to Jacobs is of course yet stronger.

Under the bankruptcy act and the decisions thereon, this set-off must be allowed. Morgan v. Wordell, 178 Mass. 350. In re Bingham, 94 Fed. Rep. 796. In re Dillon, 100 Fed. Rep. 627. In re Harper, 175 Fed. Rep. 412.

A decree must be entered in favor of the plaintiff under his first and second prayers, with costs against the defendant Parsons.

So ordered.