291 Mass. 108 | Mass. | 1935
This is a suit in equity filed in this court August 15, 1934, to empower and direct the commissioner of banks, in possession and control of the Exchange Trust Company, to allow a set-off of money on deposit to the plaintiffs’ account against a sum due from the plaintiffs to the Exchange Trust Company, of which sum the plaintiffs desire to make payment in this manner. Certain facts were agreed before and at the hearing of the case, whereupon a final decree was ordered by a single justice dismissing the bill. From this decree the plaintiffs appealed.
It appears from the agreed facts that the Crowell & Thurlow Steamship Company in the year 1923 was in financial difficulties, and that about October of that year the plaintiffs were constituted a creditors’ committee to deal with the affairs of the company in the interest of some of its creditors, under and in accordance with a certain agreement; that by this agreement various creditors assigned their claims to the committee to be enforced and the proceeds thereof to be distributed ratably to these creditors; that the Exchange Trust Company at this time was a creditor of the steamship company in the sum of $153,709.21, and about December 6, 1923, made an assignment to the creditors’ committee of its claim and account; and that the committee had a checking account for its funds in the Exchange Trust Company, and at the time it was closed, April 25, 1932, had on deposit $3,549.13. It is alleged in the bill of complaint that thereafter the committee made proof of its claim and now is the holder of a certificate entitling it to all
There is no allegation in the bill as to any definite amount to distribute on the date the bank was closed. The plaintiffs contend they are entitled to relief on two grounds: (1) by virtue of G. L. (Ter. Ed.) c. 232, § 1; and (2) on general principles of equitable set-off. It does not appear that there is any basis for set-off by virtue of the statute since there never has been any action commenced against
The case of Rossi Bros. Inc. v. Commissioner of Banks, 283 Mass. 114, 119, in which relief was given to the plaintiff, does not support the present plaintiffs’ contention. The only occasion for referring to the statutory set-off in that case was to illustrate the difference between that case and a case where the plaintiff “would be entitled to set off its deposit in the bank against its indebtedness to the bank,” if the commissioner “had not taken possession of the bank and it were doing business and brought an action on its notes against the plaintiff.” The relief given in that case was based, not on statutory set-off, but on general principles of equitable set-off, the cases of Abbott v. Foote, 146 Mass. 333, and Scott v. Armstrong, 146 U. S. 499, being cited in the opinion. In Rossi Bros. Inc. v. Commissioner of Banks, 283 Mass. 114, 119, it was said: “It is a maxim that equity follows the law as declared by a statute. This applies to set-off. Equity may in some cases even extend the doctrine. Abbott v. Foote, 146 Mass. 333, 334. The provisions of the liquidating statute, G. L. (Ter. Ed.) c. 167, §§22 and 36, contain nothing inconsistent with the application of the rule as to set-off to a case like the present.” The question in the case at bar is whether the principles of set-off entitle the plaintiffs to the relief which they seek. It was said in Holbrook v. Bliss, 9 Allen, 69, at page 77: “The power of a court of chancery to allow a set-off is derived from the civil law, founded on principles of natural equity, and neither created nor limited by statute, although it follows every statute extension of the right of set-off at law.” See also Perry v. Pye, 215 Mass. 403, 413.
In the ordinary case of set-off by a depositor against an insolvent bank there is no preference created thereby. See authorities cited in Rossi Bros. Inc. v. Commissioner of Banks, 283 Mass. 114; also 25 Am. L. R. 938 and 82 Am. L. R. 665, for cases there collected. The right of a depositor to set off a claim for his deposit against his indebtedness to
The question here is not whether on the date of the closing of the bank there was a claim that was merely not liquidated, or that could not be ascertained by calculation, but whether there was any claim at all owing to the bank by the committee. The obligation of the committee to the bank was founded on the contract under which the committee took the assignments and agreed to distribute the net proceeds from the assigned claims. On the date the bank commissioner took possession of the Exchange Trust Company there was nothing due from the committee so far as the allegations and proofs are concerned (apart from a distributive share of the $3,549.13). It does not appear that the committee had other funds to be distributed. No proof is made that any particular amount was owing on the date the bank was closed. The answer to the plaintiffs’ contention is not that the amount of the committee’s obligation to the bank was unliquidated on the date of closing, but that there was nothing due, and that it rested solely on a contingency whether anything would become due. Upon the agreed facts it was impossible for the creditors’ committee to ascertain what dividend if any would ultimately be paid. The plaintiffs argue that since the fractional shares
It follows that the final decree dismissing the bill must be affirmed, with costs.
Ordered accordingly.