290 Mass. 294 | Mass. | 1935
This is an action of contract commenced by trustee process writ dated August 2, 1933, returnable to the Municipal Court of the City of Boston August 26, 1933. The case was later removed to the Superior Court. In the Superior Court the defendants were defaulted. The trustee’s answer admitted funds ($7.96) in its possession belonging to the defendant Sarah Lerner, and further, that it had an account standing in the name of Sally Dress Company
In its aspect most favorable to the adverse claimants, the evidence warranted findings of facts in substance as follows: The claimants on May 6, 1933, entered into a written agreement whereby they associated themselves as copartners under the firm name of “Sally Dress Co.” By the terms of said agreement, each partner was to contribute $1,000 to the capital fund of the partnership, after which, and not later than July 1, 1933, a corporation was to be organized and the partnership assets and business were to be transferred thereto. This agreement was extended in writing to September 1, 1933. All funds of the partnership were to be deposited with The First National Bank of Boston (the
On May 6, 1933, and before the execution of the co-partnership agreement, there was a nominal bank account without balance on the books of The First National Bank of Boston entitled "Sally Dress Company.” This name had represented a partnership between Miller and Lerner, but Miller had ceased to be a partner of Lerner several years before, and Lerner had thereafter used the account entirely as his own. For two years the Sally Dress Company account had been inactive except on rare occasions, and for a month before the partnership agreement was signed carried no balance. Lerner, after the deposits of Miller, White and his own contributions, drew checks for his own and Miller’s use. The signature card connected with the account goes back to February 6, 1930, and the account continued under the same signature, "Sally Dress Company, L. P. Lerner.” "It is agreed that there was no evidence that the bank had any knowledge of the partnership until after the service of the writ.” Miller and White had no access to the check book and had no right to draw checks.
The plaintiff excepted to the refusal of the judge to rule (1) "That the attached credit was a credit of the defend
Privity between the trustee and the claimant is not a necessary element in such proceedings. A claimant may assert either legal or equitable rights to goods, effects or credits in the hands and possession of a trustee. Underwood v. Boston Five Cents Savings Bank, 141 Mass. 305, 306. Marvel v. Babbitt, 143 Mass. 226, 227. Under said § 33 the judge may determine the real facts. If the claimants were in fact the true owners of the entire fund, they could recover the balance which was in the bank on the day of the attachment. Bradford v. Eastman, 229 Mass. 499. R. H. White Co. v. Lees, 267 Mass. 112, 115. The judge could have determined that a trust arrangement existed between Lerner and the claimants, and could have found that as between Lerner and the claimants the claimants stood in relation to the fund in the possession of the bank as individual principals with the rights of such. The title to the fund in the possession of the bank need not be based on an assignment of that fund. It could have been found that the relation of Lerner to the deposit in the bank and between him and the claimants was brought to the attention of the trustee bank before its answer was filed and the adverse claim was duly presented. Taft v. Bowker, 132 Mass. 277. On the reported evidence the findings of the judge were warranted and the rulings on the facts found were right. It follows that judgment for the claimants on the facts found should be entered, and it is
So ordered.