Fingold v. Schacter

223 Mass. 274 | Mass. | 1916

Braley, J.

The evidence having warranted the trial judge in finding that as a bailee for hire the defendant was responsible for the destruction by fire while in his possession of the suits of clothing which had been received for the purpose of being cleaned and returned, the plaintiff suffered no harm from the first ruling. It became immaterial, and the assessment of damages ordinarily would have followed. Eastman v. Sanborn, 3 Allen, 594. Brewster v. Warner, 136 Mass. 57, 59. Lincoln v. Gay, 164 Mass. 537. Beattie v. Boston Elevated Railway, 201 Mass. 3, 6.

It appears, however, that after the action had been brought the defendant was adjudged a bankrupt, and the plaintiff’s claim, although suable in either contract or tort, was provable under § 63 of the bankruptcy act of 1898 as amended by the U. S. Sts. of 1903, c. 487; 1906, c. 3333; 1910, c. 412. Dunbar v. Dunbar, 190 U.S. 340, 349. Crawford v. Burke, 195 U. S. 176, 194. Clarke v. Rogers, 183 Fed. Rep. 518. Reynolds v. New York Trust Co. 188 Fed. Rep. 611. Having obtained his discharge, the effect of which is assumed in the record and in the briefs of counsel to be the same as if it had been duly pleaded, the defendant, even if the writ was dated more than four months before the filing of the petition, is freed from all liability, unless by force of the lien which exists where an attachment has been made, or an injunction has issued, or security has been given, the plaintiff is entitled to a special judgment as provided by R. L. c. 177, §§ 24, 25. U. S. St. 1898, c. 541, § 17; § 67 c. Herschman v. Justices of the Municipal Court of the City of Boston, 220 Mass. 137. Rosenthal v. Nove, 175 Mass. 559. Snyder v. Smith, 185 Mass. 58, 61, 63.

But, as no attachment of property remained in force, no bond was given to dissolve an attachment and no payment of money into court is shown, the plaintiff is not entitled to a special judgment under either section, and no general judgment can be entered because of the discharge. The agreement that the money deposited by the defendant with the plaintiff’s attorney "in lieu of attachment bond” should be held to await the termination of the action, and then if the plaintiff recovered applied in satisfaction of the judgment, is not within the provisions of our statute and is unenforceable. The third ruling, that the discharge in bankruptcy barred the action and that no special judgment could be entered, and the refusal of the plaintiff’s fourth request, were right.

The order dismissing the report should be affirmed.

So ordered.