Homer v. Barr Pumping Engine Co., 180 Mass. 163

Homer v. Barr Pumping Engine Co.

180 Mass. 163 | Mass. | 1901

Knowlton, J.

The plaintiff sued as a receiver of a foreign corporation, and averred in different counts of his declaration that the defendant was liable to him as such receiver, under a contract and on account of transactions with the corporation. The answer to this part of the ease is a general denial.

The law in regard to the right of receivers of corporations to sue in their own name on claims due the corporation has often been considered, and the general rule in this Commonwealth and in some other jurisdictions is that a receiver has no such right that follows him beyond the jurisdiction of the tribunal that appoints him, unless he is actually or virtually an assignee of the claim which he seeks to enforce. Amy v. Manning, 149 Mass. 487. Wilson v. Welch, 157 Mass. 77. Buswell v. Order of the Iron Hall, 161 Mass. 224. Fort Payne Coal & Iron Co. v. Webster, 163 Mass. 134. Ewing v. King, 169 Mass. 97. Howarth v. Lombard, 175 Mass. 570. Hayward v. Leeson, 176 Mass. 310, 325.

In the present case there is nothing to show that the plaintiff is an assignee of the corporation’s property, or that he has any authority to sue in his own name other than an appointment as receiver by the Circuit Court of Baltimore city in the State of Maryland, which appointment authorized him to sue in that State, either in his own name or in the name of the corporation. The auditor found that under the law of Maryland a receiver of a corporation appointed in another State in the usual way, with a right under the judicial decisions of the foreign State to sue *165in its courts In his own name, is not authorized to bring an action in his own name in Maryland. In this respect the law of that State seems to be like our own. He also decided that under our law this action could not have been maintained without substituting the corporation as plaintiff for the receiver, if the question had been properly raised by the pleadings.

On the facts found we are of opinion that the action cannot be maintained in its present form. The plaintiff’s declaration leaves upon himself the burden of showing that he is a receiver authorized to bring the action in our courts in his own name. In order to recover he must prove that the defendant is now liable to him as receiver, in such a sense that in the present form of action he is entitled to a favorable judgment from the court. The defendant’s general denial- puts this averment in issue, and the ruling on this part of the case should have been in favor of the defendant.

We see no other error in the matters excepted to. The defendant’s requests in regard to a test referred to in the contract seem to have been founded on a mistaken view of the contract. The instructions on this part of the case were correct.

Exceptions sustained.