285 Mass. 10 | Mass. | 1933
This is an action of contract brought to recover for merchandise sold and delivered at various times to the 'defendant. The case is before this court on two bills of exceptions. The defendant filed an answer containing a general denial, payment, breach of contract, and a declaration in set-off. The writ is dated June 12, 1923, and was returnable the first Monday of July. On May 22, 1931, Henri Peladeau filed a substituted motion wherein it was requested that as a party interested he might be allowed to prosecute the action in the name of the original plaintiff. The motion was heard by a judge of the Superior Court in the absence of counsel, and was allowed. In a memorandum filed by the judge it is recited that the motion was heard on numerous affidavits furnished by both parties. He found that Peladeau is now the owner of the chose in action which is the subject of the action by virtue of the assignments referred to in the motion and affidavits; that the plaintiff corporation was liquidated under the “Winding Up Act” of Canada as set forth in the affidavits, but he also found and ruled that such liquidation did not terminate the corporate existence of the plaintiff; that the plaintiff has not used its corporate franchises for a period of more than three years, that such nonuser under Canadian law does
The case, together with two claims of the defendant set forth in its declaration in set-off, was thereafter heard on the merits by another judge of the Superior Court. The evidence tended to show that the cause of action for which this action is brought was originally due to the plaintiff, a Canadian corporation, and after the bankruptcy of the plaintiff, in 1924, was assigned through mesne assignments to Henri Peladeau, who was then the owner of the chose in action, and that the present action was prosecuted in the name of Henri Peladeau, Lte., for the benefit of Henri Peladeau individually.
The defendant’s declaration in set-off consisted of two counts, the first for $1,944.54 upon an account annexed for various sums alleged to be due from the plaintiff for services and disbursements. The second count sets forth a single item for services rendered in arranging for and' procuring cancellation of a contract between the Associated Importers, Ltd., and Henri Peladeau, Lte., by which the defendant alleged that the plaintiff owes the defendant $9,000 with interest.
The judge found for the plaintiff upon the declaration as amended, and assessed damages in the sum of $11,479.75. He found for the defendant upon the first count of the defendant’s declaration in set-off in the sum of $2,676.47, and upon the second count of the declaration in set-off the finding was for the plaintiff.
The record shows that Henri Peladeau testified by deposition; that one Fred F. Dow, called by the plaintiff, testified that he was and had been for twenty years a dealer in timber and lumber and was a friehd of Fred Gillespie; that they had known each other since 1920 or earlier; that Gillespie told the witness that he went to Europe with Peladeau as his guest and that he had borrowed money fro,m Peladeau; that subsequently Gillespie told the witness that if his sales agency with Peladeau was termi
The exception saved in the first bill of exceptions is to the granting of the motion of Peladeau to prosecute the action in the name of the original plaintiff for his benefit. It is the contention of the defendant that at common law the assignment of a claim pendente lite operates to abate the action, in the absence of a statute expressly authorizing such procedure. It is provided by G. L. (Ter. Ed.) c. 231, § 51, that “The court may, at any time before final judgment, except as otherwise provided, allow amendments introducing a necessary party, discontinuing as to a party or changing the form of the action, and may allow any other amendment in matter of form or substance in any process, pleading or proceeding, which may enable the plaintiff to sustain the action for the cause for which it was intended to be brought, or enable the defendant to make a legal defence.” The question whether an amendment is to be allowed or not is generally within the discretion of the judge, and for that reason his decision thereon is not subject to exception. Smith v. Whiting, 100 Mass. 122. Barlow v. Nelson, 157 Mass. 395, 398. Peladeau is the successor in interest of the claim of the corporation who was the original party, and he may be substituted where, as here, the change in interest is occasioned by an assignment pendente lite of the cause of action. The judge found that Peladeau is the owner of the chose in action which is the subject matter of the suit by virtue of assignments to him, and no valid reason is shown why in justice he should not be allowed to prosecute the suit in his own name. It was said in Goldman v. Noxon Chemical Products Co. 274 Mass. 526, at page 529: “It is a general principle governing the rights of an assignee
It remains to consider the exceptions saved by the defendant at the trial on the merits. At the commencement of the trial the plaintiff filed a motion to amend his declaration by inserting as an additional item, at the end of the account annexed, “1 car of Birch delivered on order of the Defendant,” amounting to $597.10. To the allowance of this motion the defendant excepted. It is the contention of the defendant that the amendment added a new cause of action which the judge had no power to allow. This contention cannot be sustained. It is expressly provided by G. L. (Ter. Ed.) c. 231, § 51, that “The court may, at any time before final judgment . . . allow amendments . . . which may enable the plaintiff to sustain the action for the cause for which it was intended to be brought, ...” The amendment covers merchandise sold by the plaintiff to the defendant several months before the date of the writ. Whether this item was originally omitted from the account annexed by accident or mistake or otherwise, the motion could have been found to enable the plaintiff to sustain the action for which it was intended to be brought. It is within the power of the judge to allow amendments even by adding further counts at any time before final judgment. Pizer v. Hunt, 253 Mass. 321, 330, 331. Smith v. Boston Elevated Railway, 266 Mass. 424, 430. Johnson v. Carroll, 272 Mass. 134, 138. The case of Church v. Boylston & Woodbury Cafe Co. 218 Mass. 231, cited by the defendant, is not applicable to the present case.
The witness Dow was asked by the defendant in cross-examination, “At the time Henri Peladeau, Lte., went into
As no error of law appears in the conduct of the trial the entry must be
Exceptions overruled.