179 Mass. 415 | Mass. | 1901
The defendant is the assignee under a common law assignment made by Francis Batchelder and Company for the benefit of their creditors. The plaintiff is and was at the date of said assignment a creditor of the assignors. The assignment was dated December 16, 1899, and contains the following provision: “ No creditor shall be deemed a party to this agreement or entitled to the benefit of its provisions, who fails to assent in writing to the terms of the same within thirty days from its date . . . provided, however, that any person who was a creditor of the parties of the first part [Francis Batchelder and
In addition to what has been stated above the bill alleges that the defendant has, in his hands sufficient funds to pay the plaintiff the same dividend that he has paid other creditors who are parties to the assignment and to leave in his hands a surplus for further dividends. It also alleges that defendant declined to allow the plaintiff’s cashier to sign on the ground that he could not give his consent without liability to himself. It further alleges that for some time after the date of the assignment there were negotiations between the debtors and their creditors looking to an offer of settlement and the plaintiff did not sign because it supposed that it would be unnecessary to do so in case of a settlement and because it was considering offers of settlement; that the plaintiff’s cashier communicated with the defendant from time to time in reference to the advisability of signing, taking the ground that the plaintiff would probably assent and would do nothing to prevent a settlement of the affairs of the debtors
It is possible that in England the plaintiff would be allowed to become a party to the assignment and that, as the plaintiff contends, the English decisions would warrant such a conclusion. See Whitmore v. Turquand, 1 Johns. & Hem. 444 ; S. C. 3 De G., F. & J. 107; Raworth v. Parker, 2 K. & J. 163; In re
Assuming that the right to refuse his consent is not an arbitrary right to be exercised by the assignee wholly at his discretion and assuming that the alleged reason for refusing his consent was not the best one that could have been given, nevertheless weo think that, upon the facts in this case, the defendant was justified in refusing his consent, and that the plaintiff is not entitled to a decree in its favor. There has been no fraud, or misrepresentation or concealment on the defendant’s part. The plaintiff knew when the time for signing expired and it is due to its own neglect or inadvertence that it did not sign. No valid excuse is shown for the delay. And the fact that the assignment contemplates a pro rata distribution amongst the creditors of the assignors and that the plaintiff is a creditor is not enough to entitle it to relief. It also contemplates that only those creditors who become parties to it in the manner provided shall share in the distribution, and the plaintiff has not become a party to it, in the manner provided. The general averment upon information and belief that the defendant is acting from an improper motive and purpose is not enough, we think, to entitle a plaintiff to relief in a case where, as here, the trustee is acting within the terms of the power that is conferred, and the facts, so far as shown, appear to justify the action that is complained of.
Bill dismissed.