Moulton v. Bartlett

195 Mass. 33 | Mass. | 1907

Knowlton, C. J. L. M. Friedman, (P. A. Atherton with him,) for the plaintiffs. G. K. Colh f W. B. Whitmore, Jr., for the defendants, were not called upon.

The decision in National Bank of Commerce v. Bailey, 179 Mass. 415, is decisive of this case. It is said in the opinion, with a citation of authorities, that “ in this Commonwealth the time within which creditors may sign is regarded as of the essence of the contract and it is held that the creditors who sign within that time acquire thereby the right to have the property distributed amongst themselves.” The facts in that case were more favorable to the plaintiffs than they are in the present case. These plaintiffs commenced, and continued for a long time, litigation, with a view to supersede the assignment by proceedings in bankruptcy. They declined to become parties to the assignment, although they knew “ that there probably was a time limit for assent fixed in the deed.” The judge who heard the case* found “that the trustees have not acted dishonestly or in bad faith in withholding their consent, but on the contrary have acted throughout in dealing with the plaintiffs under advice of counsel and in the honest belief that they were doing what was right and according to their duty as trustees.”

There is nothing in the record to show that the court was wrong in holding that there was no abuse of their discretion.

Bill dismissed with costs.

Schofield, J., who ordered that the bill be dismissed, and at the request of the plaintiffs reported the case for determination by this court.

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