289 Mass. 52 | Mass. | 1935
This is a bill in equity. The case is here on the plaintiff’s appeals from an interlocutory decree sustaining the defendant’s demurrer and a final decree dismissing the bill. The demurrer is based solely on the groúnd that the plaintiff has a plain, adequate and complete remedy at law.
The allegations of the bill may be summarized as follows: About April 7, 1932, the plaintiff and his wife purchased of the defendant “from sample” a bedroom set for the total sum of $326.10. The plaintiff paid a deposit of $30 and signed a paper “which he understood was a lease” but he did not receive a copy of the paper at the time and has never been given one, though he was given a receipt book which stated that it was issued in connection with “Lease No. 38817.” On May 13, 1932, additional merchandise to the amount of $22.50 was added to the account. The merchandise purchased April 7 was delivered before May 1. A few days after delivery the plaintiff complained at the defendant’s office that the bedroom set was not as good as the one he had been shown at the defendant’s showrooms and requested that the defendant take it back and deliver the kind of set he had purchased. He was told that this set was exactly like the one shown him, and he said nothing further at that time. Some time later the plaintiff discovered that the furniture delivered to him was not new but had been superficially refinished to look like new. Since that time
The prayers of the bill are that the lease be declared null and void, that the rights of the parties be determined, for general relief, and that the defendant be temporarily restrained from collecting from the plaintiff any of the sums claimed to be due “either by foreclosure of said alleged lease or otherwise.” It is a necessary inference from the bill that the plaintiff still retained the property in question when the bill was filed.
If we assume with the plaintiff that as against a demurrer based solely on the ground that there is an adequate remedy at law (Sullivan v. Judges of the Superior Court, 271 Mass. 435, 436), such a bill, notwithstanding its vague allegations as to the nature of the alleged fraud and as to other essential matters, must be treated as a bill to rescind a conditional sale in the form of a lease on the ground that the plaintiff was originally induced to enter into it by fraud of the defendant, yet it appears from the bill itself that the plaintiff has retained the furniture for two years or more after discovery of the alleged fraud and that he has continued to
It follows that the plaintiff’s only remaining right is to recover damages for the alleged fraud. Whiteside v. Brawley, 152 Mass. 133. Whiting v. Price, 172 Mass. 240, 243. Patch v. Cashman, 244 Mass. 378. Roche v. Gryzmish, 277 Mass. 575. For the enforcement of this right the plaintiff’s remedy at law is as full, complete and adequate as any remedy equity could give him.
But the plaintiff points to the allegation in his bill with reference to the “lease” that “he did not receive a copy of this paper at the time and has never since been given one.” He cites G. L. (Ter. Ed.) c. 255, § 12, which requires a conditional vendor to furnish a copy of the contract to the vendee and further provides that “A failure of the vendor through negligence to comply with any provision of this section shall suspend his rights under the contract while the failure continues.” He argues that by reason of this section the defendant has no right to repossess the furniture until the defendant shall have furnished the copy and that the plaintiff is therefore entitled to maintain the bill to restrain the defendant from doing that which for the time being would constitute an unlawful interference with the plaintiff’s rights in the property, and that the plaintiff has open to him no adequate remedy at law to meet this particular situation. An immediate answer to this contention is found in the fact that the statute by its terms relates only to a failure of the vendor to furnish the copy “through negligence,” but that the bill entirely fails to allege negligence. It is not only possible in fact but is
Inasmuch as an examination of the whole bill discloses no averments of wrongs accomplished or threatened for
Interlocutory decree affirmed.
Final decree affirmed with costs.