118 Mass. 271 | Mass. | 1875
The plaintiffs have recovered judgment against Harte for the sum set forth in their bill, but even if they would have been entitled, if they had brought an action at law against Harte, and summoned Osgood & Co. as trustees, to receive the amount which had already been earned at the date of this process, at the time when by the terms of the contract it should become payable, such sum would not be enough to pay the judgment.
The existence of an imperfect remedy at law will not prevent a plaintiff from maintaining a bill in equity; that it should have such effect, the remedy there afforded should be the same in extent and character as that given in equity. Robinson v. Trofitter, 109 Mass. 478. Jones v. Newhall, 115 Mass. 244.
The object of the Gen. Sts. c. 118, § 2, is to enable a creditor, by bringing a bill for that purpose, to reach and apply every valuable property, right, title or interest, legal or equitable, which the debtor may possess to the payment of his debt, and the creditor here seeks to obtain the benefit of the contracts existing between the defendants, that the funds which Harte may be entitled hereafter to receive under them may be thus applied.
The remedy given by this section of the General Statutes and those provisions of which it is a reenactment, has frequently been discussed by this court. Silloway v. Columbia Ins. Co. 8 Gray, 199. Sanger v. Bancroft, 12 Gray, 365. Davis v. Werden, 13 Gray, 305. Moody v. Gay, 15 Gray, 457. Taylor v. Robinson, 7 Allen, 253. Barry v. Abbot, 100 Mass. 396. Vantine v. Morse, 104 Mass. 275. Tucker v. McDonald, 105 Mass. 423.
The case most nearly resembling the present is, however, Anthracite Ins. Co. v. Sears, 109 Mass. 383, where a creditor was permitted, by a bill similar to this, to reach and apply, in payment of his debt, a policy of insurance on the life of the debtor which was held by the debtor. In the opinion some stress apparently is laid on the fact that the policy was by its terms assign
It is argued for the defendants that the bill does not seek to reach the contracts themselves, and in this respect, as well as in the fact that the thing sought to be reached, namely, the moneys to be paid in the future, can be come at to be attached, differs from all bills heretofore sustained by the court. But in Barry v. Abbot, cited above, what the plaintiff by the decree was entitled to have applied to the payment of his debt was derived from the right which his debtor Abbot had to receive the balance of certain notes made by one of Abbot’s debtors, Blood, to another of Abbot’s creditors, Chamberlin, after Chamberlin should have collected the notes from Blood and after payment of his own debt; such notes not having been collected at the time of the decree. In that case, if the plaintiff had waited until Chamberlin had collected the notes and paid his own debt, the balance of the funds, which would then have become due to Abbot, would have been liable to attachment in the hands of Chamberlin as his trustee.
What the rights of the parties to this contract may be, if they should desire hereafter to change or abandon it, or what the par ticular form of remedy may be, to which the plaintiff may be entitled in order that he may realize his debt, need not now be discussed. Upon the facts admitted by the demurrer, the defendant Harte has a valuable interest under an existing contract which cannot be come at to be attached. Any remedy which the plaintiffs may have by the trustee process, and no other is suggested, is uncertain, doubtful and inadequate, and there is therefore presented a case for relief by this bill. Demurrer overruled.