228 Mass. 86 | Mass. | 1917
This is an appeal from a decree dismissing a bill brought to enjoin the defendant Samuel B. Donovan from enforcing a bond to dissolve an injunction signed by the plaintiff Kirby as one of the principals and by the New England Casualty Company as surety.
The facts are these: In November, 1912, the defendant Samuel B. Donovan brought a bill in equity in the Superior Court alleging that he was entitled to a one quarter interest in the profits of a real estate partnership for buying, developing and selling four specific parcels of land therein described; that Joseph A. Donovan, (brother of Samuel B. Donovan, the plaintiff in that bill,) managed the affairs of the partnership, receiving all moneys due it and paying all obligations incurred by it; that the title to the four parcels was originally taken by Joseph; that Joseph kept the title to one parcel throughout but that he conveyed the title to the other three to Kirby; that Joseph A. Donovan was entitled to a one quarter interest and that Kirby was entitled to the other one half interest in the profits of the partnership. It further was
Kirby did undertake to take an appeal as a party to the suit.
1. We take up the last contention. This contention is founded on the proposition that the bill brought in the Superior Court by Samuel was a bill to reach and apply the interest of Kirby and Joseph in the partnership real estate in satisfaction of a claim for unliquidated damages which he (Samuel) had against Joseph for breach of his contract to give him a one quarter interest in the profits of the partnership covering the four parcels of land in question. And he relies upon the decision in H. G. Kilbourne Co. v. Standard Stamp Affixer Co. 216 Mass. 118, in which it was decided that a bill to reach and apply does not lie to enforce a claim for breach of a contract where the damages are unliquidated. He contends further that if the bill as originally brought was not a bill to reach and apply it became so by the amendment which was made by Samuel on the coming in of the master’s first report. On the coming in of the master’s first report Samuel’s counsel in place of
It is plain that there is nothing in the contention that the court had no jurisdiction. There does not seem to have been any error in the decree made by the Superior Court. But what Iiirby has undertaken to make out is that the Superior Court had no jurisdiction to enter the decree which it entered. He would not have made out that proposition if he had shown that the decree was an erroneous one. Whether there was or was not error in the decree is not the question. The Superior Court is a court of general jurisdiction both in law and in equity. It had jurisdiction of the subject matter of the bill brought against Joseph and Kirby by Samuel and it had jurisdiction of both of the defendants; both of them were in court actively defending the suit. Under those circumstances the Superior Court had jurisdiction to enter the decree. The most that the present plaintiff’s contention amounts to is that the Superior-Court made an error in making the decree made by it. It is one thing for a court having a right to make a decision to make a wrong one. It is another thing to have no right to make a decision at all. To make out lack of jurisdiction in the Superior Court to make the decree here in question Kirby had to make out that the Superior Court had no right to make a'decision in the premises right or wrong. See, for example, Tehan v. Justices of
2. The plaintiff’s second contention is that the amendment was an amendment which the court had no right to allow and therefore the casualty company was discharged even if he (Kirby) was not discharged. The amendment was allowed after Kirby had been heard on the matter. It does not appear that the casualty company had notice of the motion. The contention is disposed of by the fact that the amendment relied upon was of no consequence. The decree which was finally made was a decree which might have been made under the original bill. We say that it might have been made under the original bill, because the finding of the master was a finding as to the amount due if Joseph had performed his contract, that is to say, it was a finding as to the amount of the profits to which Samuel and his wife respectively were entitled and was not a finding as to damages for breach of a contract. Under these circumstances it is not necessary to consider other objections to the plaintiff’s right to maintain the bill on this ground.
3. The last contention is that the decree which was entered by the Superior Court was a collusive decree entered through a conspiracy between Joseph and Samuel.
There was no direct evidence in this case that the decree made by the Superior Court was procured through collusion pursuant to a conspiracy between Samuel and Joseph. The plaintiff undertook to make out the acts of collusion and conspiracy by circumstantial evidence. It is pre-eminently a case therefore where the rule applies that the findings of the single justice who saw the witnesses must stand unless they are plainly wrong.
We have read the testimony and the whole of it and we are of opinion that the finding of the single, justice must stand. We state this proposition in these terms because it is the form in which the question is presented to us and not because we have any doubt of the correctness of the finding of the single justice.
It appears in evidence and by the finding of the single justice that while the hearings were going on before the master Joseph got into financial difficulties and applied to Kirby for help and that Kirby refused to help him. “Upon this refusal Joseph Donovan determined in some way to injure Kirby financially.” After-
We find no error in the order disposing of the plaintiff’s requests for findings and rulings.
The decree of the single justice dismissing the bill must be affirmed with costs. It is
So ordered.