289 Mass. 315 | Mass. | 1935
This is an action brought by Dominick De-Santis, “for the sole use and benefit of Ernest Bucci,” to recover upon an attachment bond signed by Jacob Friedberg and Leo Dane “as they are trustees of the Codman Park Trust,” as principals, and by the Massachusetts Bonding and Insurance Company, as surety. The case was tried to a jury and there was a verdict for the plaintiff. At the trial exceptions were saved by the plaintiff and by the defendants. There are two bills of exceptions before this court, one in behalf of the defendants jointly and one in behalf of the plaintiff, “the latter to be disregarded if the defendants’ exceptions are overruled.”
The pertinent facts leading up to the present action are as follows: By a writ returnable to the Superior Court in May, 1928, DeSantis sued Friedberg individually in an action
The declaration in the present action was filed August 1, 1932, by DeSantis as plaintiff. On May 12, 1933, the writ was amended by leave of court by adding after the name of DeSantis the words "who brings this action for the sole use and benefit of Ernest Bucci.” During the course of the trial the defendants excepted to the admission and exclusion of evidence, and to the submission to the jury of special questions relating to the consideration paid by Bucci for the assignment and to the knowledge of the assignment by Dane and Mr. Johnston, prior to the execution of the alleged so called release. Exceptions were also taken to the denial of the defendants’ motions for directed verdicts and to the entering of a verdict for the plaintiff after the return of the special jury verdict. The plaintiff excepted to the exclusion of evidence tending to show that the defendants had agreed not to use the "release” to bar the enforcement of the judgment as against the defendants in their capacity as trustees but only to use it to bar enforcement against personal assets of Dane.
Subject to the defendants’ exception, the judge submitted to the jury the three questions which follow: “1. Did Bucci pay any consideration to DeSantis for the execution and delivery of the instrument [printed in the record] marked Exhibit 4? 2. Did Leo Dane, one of the defendants in this action know at any time prior to May 12, 1932 [date of the 'release’], that DeSantis had executed and delivered to Bucci an assignment of his claim against Fried-berg? 3. Did John C. Johnston, who became attorney for Leo Dane in the action No. 208445, and before May 12, 1932, know that DeSantis had executed and delivered to
By the assignment it is apparent that DeSantis divested himself in equity of his claim against Friedberg and of his rights in the then pending action. The amendment of the cause of action by adding Dane and by describing Fried-berg and Dane as “trustees of the Codman Park Trust” did not change the essential nature of the cause of action, but the allowance of the motion was conclusive evidence of the identity of the action in the amended form with the action in the original form which is described in the assignment. G. L. (Ter. Ed.) c. 231, § 138. Shapiro v. McCarthy, 279 Mass. 425, 428. Ames v. Beal, 284 Mass. 56, 61, 62. It was not necessary to the complete setting forth of the present cause of action that Bucci should have been named as plaintiff. Becker v. Eastern Massachusetts Street Railway, 279 Mass. 435, 442. There was evidence that notice of the assignment was given to Friedberg and to his attorney, Mr. Johnston, and the jury found in answer to the question submitted to them that prior to May 12, 1932, the date of the “release,” the other defendant, Dane, also had knowledge of the assignment. The close connection of Dane with Friedberg and Mr. Johnston and with the litigation was ample to warrant the jury’s conclusion. In these circumstances the “release” signed by DeSantis could not affect the rights which Bucci had obtained by virtue of the assignment. Jones v. Witter, 13 Mass. 304, 306. St. Johns v. Charles, 105 Mass. 262, 263. Friedberg v. Jablon, 287 Mass. 510, 513.
The defendants’ exception to the admission of evidence of the assignment is overruled. The assignment was admissible to prove the inadmissibility of the “release” as a defence in the present action, and the defendants’ motions for directed verdicts based on the alleged “release” were denied rightly.
The defendant Friedberg excepted to the admission in evidence of the execution. The contention made in support of this exception was that the bond declared on was a
The defendants’ next exception is to the exclusion of the question asked Bucci in cross-examination: "Did DeSantis assign the claim to you so that nobody could attach it?” If the purpose of the question was to show fraud on DeSantis’s creditors, it was properly excluded because the defendants were not creditors, nor did they represent creditors. O’Gasapian v. Danielson, 284 Mass. 27, 34, 35. The present contention of the defendants is that an affirmative answer would have "constituted DeSantis both the legal and equitable holder of the claim.” An affirmative answer to the question in this form would have had little, if any, relevancy to prove that the assignment was without consideration, even though the motive of DeSantis was fraudulent as to his creditors. The question was also objectionable in form in that it called for the opinion of the witness as to the motive or intent of DeSantis. It is plain that the question was excluded rightly in either aspect. P. P. Emory Manuf. Co. v. Rood, 182 Mass. 166, 168.
The defendants’ next exception is to the exclusion of a question asked Mr. Johnston, former attorney of Friedberg and Dane. This question was as follows: "From the date that you received this letter in June, 1930, when was the next time you had brought to your attention the existence of Bucci or the existence of the Bucci assignment?” The defendants made the following offer of proof: "My offer of proof is that Mr. Johnston — that it didn’t come into his
The final exception argued by the defendants is the exception to the submission to the jury of the three questions already quoted. The defendants contend that there were four outstanding features of the case that were not submitted to the jury upon which the defendants were entitled to have the jury pass: (1) “Whether DeSantis had authority from Bucci to execute the release”; (2) “Whether Mr. Rose had authority to make the agreement for the obtaining of judgment for the giving of the release”; (3) “Whether Bucci had ratified the acts of DeSantis and Mr. Rose”; and (4) ‘‘ The extent of the interest in the judgment that Mr. Rose and Mr. Jablon had.” Respecting (1), there is no evidence in the record from which the jury could have found an authorization from Bucci to DeSantis to execute the “release.” Respecting (2) and (3), it is settled law that while an attorney, by virtue of his employment, has broad powers with reference to the prosecution and management of actions and suits, those powers do not extend to matters affecting the cause of action. Precious v. O’Rourke, 270 Mass. 305, 308, and cases cited. Mr. Rose had no implied authority to give a ‘ ‘ release ’ ’ on behalf of Bucci. There is testimony of Bucci, on cross-examination by the defendants, to the effect that he had asked his attorney no questions with reference to any paper prepared by Mr. Rose and that he told Mr. Rose to go ahead and take care of the case, stating: “I am not a lawyer. ... You are the lawyer to go ahead and do everything.” This evidence elicited in cross-examination was not sufficient to warrant a finding of specific authority from Bucci to Mr. Rose. It showed a general authority in Mr. Rose to prosecute the action and tended to show, as Bucci
The remaining exceptions, which are to the refusal of certain requests by the defendants for rulings, while referred to, are no.t specifically argued in the brief of the defendants, and they are, therefore, not entitled to have them treated separately by this court. Barnes v. Springfield, 268 Mass. 497, 504. The defendants are not prejudiced thereby because in the main the requests have been considered in connection with other exceptions argued by them.
The defendants’ exceptions are overruled and the plaintiff’s exceptions are treated as waived.
Defendants’ exceptions overruled.
Plaintiff’s exceptions waived.