International Correspondence Schools v. Hunneman

260 Mass. 198 | Mass. | 1927

Braley, J.

The plaintiff corporation, engaged in the business of conducting correspondence schools, employed the defendant Hunneman under contracts, copies of which are annexed to the bill, to solicit and obtain subscribers for scholarships. The contracts thus sold were paid in instal-ments which Hunneman had no right to retain, but was required to transmit each day to the plaintiff. It is alleged, and the master to whom the case was referred found, that by mutual mistake certain material errors as to the terms of employment were made in the drafting of the instruments dated respectively May 24, 1921, February 24, 1922, and April 20, 1922, and the plaintiff, not being satisfied with the returns made by Hunneman) brought the present suit for an accounting.

The defendant took ten exceptions to the master’s report, and an order was made directing that an interlocutory decree be entered overruling the exceptions and confirming the report. But, no reference having been made to the order, we treat it as in effect an interlocutory decree from which no appeal was taken.

“On January 24, 1925,” after the trial before the master, “Hunneman made what purported to be an assignment to one William J. Lally of all his right, title and interest in and to commissions which may be due the” assignor from the plaintiff.

The master’s report in favor of the plaintiff was filed January 12,1925, and on October 29, 1925, the plaintiff was permitted to join Lally as a party defendant, who appeared and filed an answer, and Lally and Hunneman on December 11,1925, moved for leave to file a cross bill. The motion was denied and they appealed. The question, whether leave should be given, rested in the sound discretion of the court, and, no abuse of its exercise appearing, the order is affirmed. Fuller v. Fuller, 234 Mass. 187.

The judge found on the master’s report that there was nothing due to Hunneman from the plaintiff, and that, whether Hunneman at the date of the assignment had any valid claim against the plaintiff, depended on the result of the accounting as stated in the report. It also was found that Lally had brought an action at law against the plaintiff, in which Hunneman was summoned as trustee, to collect the alleged debt, which was pending in the Municipal Court of the City of Boston. The court had jurisdiction of the parties and of the controversy over the accounting between the plaintiff and Hunneman, and when Lally by force of the assignment, which does not appear to have rested on a valuable consideration, succeeded to certain alleged rights of Hunneman based on one of the contracts described in the original bill, such jurisdiction could be retained for the purpose of administering full relief to the plaintiff not only as to transactions which existed when the bill was filed, but as to events occurring pending the suit and connected with it, as shown by the amended bill. Milkman v. Ordway, 106 Mass. 232. McMurtrie v. Guiler, 183 Mass. 451, 455. Cole v. Wells, 224 Mass. 504. Brickley v. Meer, 251 Mass. 23.

The defendants however contend that the tenth, eleventh and twelfth paragraphs of the decree, which granted such relief, are too broad. But, being within the scope of the pleadings and the report, they are justified because the plaintiff should not be subjected to frivolous and vexatious litigation, which may be extended indefinitely. Cunningham v. Butler, 142 Mass. 47, 52. Raynes v. Sharp, 238 Mass. 20. Hawkins v. Ireland, 64 Minn. 339. The final decree is affirmed with costs.

1 The plaintiff’s appeal from the denial of its motion in the trial court to dismiss the defendants’ appeal because it was not seasonably prosecuted, has become of no consequence by reason of our decision on the merits. It is dismissed.

Ordered accordingly.