252 Mass. 379 | Mass. | 1925
These are two suits in equity growing out of a transaction concerning certificates of stock in the General Mortgage and Loan Corporation, which were originally issued to Edwin Mulready, now deceased.
Number 1921 is a suit by Catherine Mulready, his widow and the executrix of his will, against Harold A. Pheeny and Barbara M. Moran, to rescind the sale of the stock by Mrs. Mulready to Pheeny, on the ground that the plaintiff was defrauded by Pheeny through Barbara M. Moran, his agent. The bill alleges that Barbara Moran represented to the plaintiff “that no dividends had been paid on said stock and it had no value”; that Pheeny “would offer the sum of Three Hundred and Fifty Dollars ($350) and that Pheeny had offered her [Moran] a similar amount for some stock which she owned”; that these statements were false and were made with intent to deceive the plaintiff; that before the false representations were made it had been voted by the board of directors of the corporation to offer Mrs. Mulready $1,496.97
In No. 1921 the plaintiff (Mrs. Mulready) asks for a rescission of the agreement by which she disposed of the stock, because of the fraudulent representations made to her. Meagher contends that he has a sufficient interest in the suit to enable him to intervene. Mrs. Mulready had, at most, only the right to rescind the contract because of the fraud practised on her. That right could not be assigned or transferred. A mere naked right to set aside a contract on the ground of fraud is not assignable. Meagher was not defrauded. To permit him to litigate for a fraud practised on his assignor would be against public policy. Such a right “is not a marketable commodity.” See De Hoghton v. Money, L. R. 2 Ch. 164, 169. Prosser v. Edmonds, 1 Young & Collyer, 481. As was stated in United Zinc Co. v. Harwood, 216 Mass. 474, at page 479, “A mere right, however, to litigate for a fraud perpetrated upon . . . [an individual] and nothing more . . . [is] not assignable at law or in equity.” Lee v. Fisk, 222 Mass. 418. Brocklehurst & Potter Co. v. Marsch, 225 Mass. 3, 11. It would be contrary to the fundamental principles of equity to allow Meagher, the intervenor, whose only interest in the personal wrong done to Mrs. Mulready arises from his agreement with her, to prosecute a suit which she does not believe has merit and which she cannot in conscience prosecute. Equity will not require a litigant to prosecute a suit which she believes to be false, groundless and unlawful. The plaintiff cannot be allowed to intervene in this suit. We do not find it necessary to consider the further objections urged against his right to intervene. The decrees in Mulready v. Pheeny, (No. 1921) are affirmed.
In No. 1948 Meagher prays for specific performance of the agreement with Mrs. Mulready, that she be ordered to prosecute her suit in equity against Pheeny and Moran. What we have already said disposes of this case. Meagher has no
In each case the entry must be
Decrees affirmed with costs.