245 Mass. 94 | Mass. | 1923
This is a suit in equity by a judgment creditor of Dorman-Huxford Company against that corporation and several other persons alleged to be indebted to it on account of transactions connected with those out of which sprang the main indebtedness to the plaintiff. The case was referred to a master under a rule requiring him to report his findings. No evidence is reported and those findings must be accepted as true. So far as now pertinent they are as follows:
Dorman-Huxford Company is a Massachusetts corporation in business in Boston as a broker in canned goods and dried fruits, selling from manufacturers to jobbers on commission. The plaintiff, a corporation located at Vancouver, British Columbia, is a packer and seller of canned salmon among other products. At the instance of the defendant Tunes, Dorman-Huxford Company bought of the plaintiff two lots of canned salmon of five thousand cases each. Tunes, who gave both orders to Dorman-Huxford Company, said to it that the first lot was intended for the defendants Pistorino and Tunes. Two days later, on February 10, 1919, Dorman-Huxford Company mailed to Pistorino and Tunes a “ sales ticket ” headed with its name and address,
It is alleged in the bill and admitted by the answer of Dorman-Huxford Company that the latter has not assets which can be taken on execution sufficient to satisfy the plaintiff’s claim. The purpose of the bill is to collect the amount due on the judgment from the persons for whom the goods were bought by Dorman-Huxford Company and who are alleged to be debtors to that company.
The goods which are the subject of this suit were of merchantable quality. Dorman-Huxford Company acted in both transactions as a merchandise broker bringing the parties together, and Yunes knew the basis of the transactions to be that the plaintiff was selling to concerns which he represented. At all times material to this suit Yunes was authorized to represent and contract for purchases on account of Pistorino and Yunes and the International Import and Export Company. This finding of the master is interpreted to mean that Dorman-Huxford Company knew that Yunes was at all times acting as agent, treated him as agent, and accepted his principals as soon as disclosed.
There is no express finding by the master as to the point
The statute of frauds is no defence - to Pistorino and Yunes or the International Import and Export Company. Although neither of them signed any paper, the “ sales
It was said in Greene v. Goddard, 9 Met. 212, at page 222, “ Where an agent, in pursuing the instructions of his principal, and acting within the scope of his authority, becomes personally liable for the performance of the contract he makes for his principal, and without which personal liability the orders of the principal cannot be executed at all, or not so well executed, and this is known by the principal at the time of giving his instructions and creating the agency, if a loss occur to the agent, it is most clear that he can look to the principal for indemnity for the damage sustained by him.” Bibb v. Allen, 149 U. S. 481, 498.
It is not always an essential prerequisite in equity to liability on the part of the customer to his broker for indemnification for loss incurred that the latter has actually paid the obligation. In the circumstances here disclosed and in this proceeding in equity, it is not necessary that Dorman-Huxford Company be forced into bankruptcy or make payment of the plaintiff’s claim by borrowing money to that end before liability on the part of those ultimately responsible can be established and enforced. As between Dorman-Huxford Company, the brokers or agents, and their customers or principals, the ultimate responsibility is wholly on the latter.
The governing principle of equity in such circumstances was succinctly stated by Mr. Justice Gray in Keller v. Ashford, 133 U. S. 610, at page 623, as follows: “ if one person agrees with another to be primarily liable for a debt
It is provided by G. L. c. 214, § 3 (3) that there is jurisdiction in equity over “ Other cases in which three or more parties have distinct rights or interests which cannot be justly and definitely decided in one action at law,” and in § 3, (7) over suits by creditors to reach and apply any legal or equitable right or interest of a debtor “ which cannot be reached to be attached or taken on execution in an action at law.”
The principle declared in Connolly v. Bolster, 187 Mass.
It follows from these equitable principles and statutes that the plaintiff can maintain this suit. This result was adumbrated in Forbes v. Thorpe, 209 Mass. 570, 582. There is nothing inconsistent with this conclusion in Coffin v. Adams, 131 Mass. 133, Robb v. Mudge, 14 Gray, 534, Marston v. Bigelow, 150 Mass. 45, and cases of like nature.
The plaintiff is not precluded from recovery in this proceeding by recovering judgment against Dorman-Huxford Company. Doubtless that judgment was an election to hold that corporation rather than other defendants as its main debtor. Weil v. Raymond, 142 Mass. 206, 213. Marsch v. Southern New England Railroad, 230 Mass. 483, 499. Having obtained judgment against one whom it has elected to hold as its main debtor, it is now attempting to collect that judgment by equitable process against those hable to that debtor.
The exceptions to the master’s report cannot be sustained. The introduction of the certificate of judgment in the usual form of the court in the action of the plaintiff against Dorman-Huxford Company, together with copy of special findings of the jury, was right. It does not appear but that this showed the issues raised. Rathbone v. Rathbone, 10 Pick. 1. It was competent as binding between the parties to it, both of whom are parties to this action. It was competent on the further ground that the master’s report shows in substance tender of defence of that action to Yunes. He was present in court during the trial, with his attorney, and assisted by furnishing evidence for its defence. This bound the defendants whom Yunes represented and rendered that judgment conclusive against them. Boston v. Worthington, 10 Gray, 496, 499. Boston & Maine Railroad v. T. Stuart & Son Co. 236 Mass. 98, 102.
The question as to the disposition made of the carload of salmon received and paid for does not seem to have been
A cross bill has been brought by Dorman-Huxford Company seeking to have established its right of exoneration by the other defendants, and that they be required to pay to the plaintiff the amount of its judgment and interest, and for its counsel fees incurred in the defence of the original action by the plaintiff against it. This was proper practice in order that all matters in controversy between all the parties growing out of the subject matter of the suit may be adjusted in one suit. Forbes v. Thorpe, 209 Mass. 570, 583. Parsons v. Parsons, 230 Mass. 544, 553.
The reasons already stated and the authorities hitherto collected are enough to show that the plaintiff in the cross bill is entitled to general relief.
The plaintiff in the cross bill is also entitled to recover the amount disbursed by it for counsel fees in the action at law brought against it by the plaintiff. That defence was undertaken for the benefit of its principals to whom the sales tickets were sent. An agent may recover his disbursements made in the transaction of his principal’s business. Whitehead v. Darling, 9 Ky. Law Rep. 340. Lyon v. Sweeney, 91 Mich. 478. Curtis v. Barclay, 5 B. & C. 141. Clark v. Jones, 84 Term. 351. The plaintiff in the cross bill was defending an action brought against it on its own obligation. Although in its name, that obligation was wholly for the benefit of the ultimate purchasers of the goods. The case at bar plainly comes within the principle of Westfield v. Mayo, 122 Mass. 100, at page 109.
Decree is to be entered overruling exceptions to and confirming the master’s report, and overruling demurrer to the cross bill. Decree is to be entered on the plaintiff’s bill ordering the defendants Pistorino and Yunes and the defendant the International Import and Export Company each to pay the proportion of the plaintiff’s judgment for which each is liable as the buyers respectively of the first and second lots of goods, with costs. On the cross bill like decree is to be entered as to payment of the judgment, and
So ordered.