268 Mass. 536 | Mass. | 1929
This is a suit in equity instituted on October 26, 1926, to reach and apply property of the defendants in payment of a debt alleged to be due to the plaintiff. G. L. c. 214, § 3 (7). It is prosecuted only against the defendant Niles. The case was referred to a master. The evidence is not reported. Hence his findings of fact must be accepted as final. Additional findings of fact were made by the trial judge. Thus it appears that the obligations sought to be established arose from payments aggregating $10,000, by the plaintiff to a firm of brokers in which Niles was a partner, induced by false representations by another member of the firm. The payments were made on Janu
The plaintiff received $3,500 on April 21, 1922. On March 14, 1922, his claim of $10,000 “To money wrongfully received and wrongfully converted to their own use” was allowed. On this claim he received a dividend of ten
The master found as a fact that in making his composition the plaintiff “did not intend to waive any claim that he might have against the three partners individually outside of the bankruptcy court, that nothing was said on the subject one way or another at the time the agreement was made, and that he intended then to compromise only the claim that was in that court.” He further found that the trustee in bankruptcy did intend that that compromise should settle definitively any claim that the plaintiff might have against the bankrupts’ estate, but that the plaintiff’s counsel then hoped and later tried to obtain from any funds that might be in the hands of the trustee in bankruptcy, after a final dividend was paid, a further and additional payment to the plaintiff; and, while no assurance was given by the trustee in bankruptcy, such possibility was from time to time discussed between the trustee in bankruptcy and the plaintiff, and the trustee later arranged a conference with the referee in bankruptcy to discuss it. Whether, “regardless of the intentions of the plaintiff, the effect of these proceedings was as a matter of law to compromise the claim,” the master left for the court to determine as a question of law.
After confirmation of the report of the master, a judge in the Superior Court ruled and found, on hearing on final decree, that, in seeking to follow the funds in the hands of the trustees and in accepting the compromise of his claim, the plaintiff had elected to disaffirm the original transaction and could not maintain the bill. A decree dismissing the bill with costs as to all defendants was entered. The case is before us upon appeal from this decree.
It seems plain that the claims presented by the plaintiff in the bankruptcy court were contractual in nature. This follows from the settled law that claims arising purely ex delicto cannot be proved under the present bankruptcy act. It was said in Schall v. Camors, 251 U. S. 239, at page 251: “Upon every consideration, we are clear that claims based upon a mere tort are not provable. Where the tortious act constitutes at the same time a breach of contract a different question may be raised, with which we have no present concern; and where, by means of the tort, the tort-feasor obtains something of value for which an equivalent price ought to be paid, even if the tort as such be forgiven, there may be a provable claim quasi ex contractu. Crawford v. Burke, 195 U. S. 176, 187; Tindle v. Birkett, 205 U. S. 183, 186; Clarke v. Rogers, 183 Fed. Rep. 518, 521-522; affd. 228 U. S. 534, 543.”
The plaintiff in his brief in the present case concedes that he had disaffirmed his contract with the bankrupts and was proceeding in the bankruptcy court on the assertion of contractual claims. He bases a part of his argument on the proposition that his petitions for reclamation and his proof of claim all rested on disaffirmance of his contract with the bankrupts and on the theory that, because of the unjust enrichment of the bankrupts’ estate through their fraudulent act, a contractual obligation arose by implication of law to repay to him the money thus fraudulently taken from him.
The proceedings of the plaintiff in the bankruptcy court, after disaffirmance of the contract were “founded upon an open account, or upon a contract express or implied,”
It is of no avail to the plaintiff to introduce evidence that he intended to compromise only the claim in the bankruptcy court, and did not intend to release or to waive any claim that he might have against the partners individually outside the bankruptcy court. Nothing was said on the subject between the plaintiff and the trustee in bankruptcy
This point is governed in principle by numerous decisions where a plaintiff, taking payment in settlement of his claim against one of several tortfeasors jointly and severally responsible for a wrong done him, has undertaken to show that he had not intended to release other tortfeasors, and where it has been held that evidence to that end was inadmissible. Brown v. Cambridge, 3 Allen, 474, 475, 476. Muse v. DeVito, 243 Mass. 384, 388, 389. Gold v. Boston Elevated Railway, 244 Mass. 144. Costello v. Hayes, 249 Mass. 349, 352. McKenney v. Boston Elevated Railway, 259 Mass. 28. Cases like Shapiro v. Lyon, 254 Mass. 110, 117, are not relevant in this connection.
It is assumed in favor of the plaintiff that, if he had simply proved his claim for $10,000 upon the implied contract, § 63a (4) of the bankruptcy act, he might still pursue the partners individually after their discharge, because the discharge in bankruptcy would not release them from provable debts founded on liability for obtaining property by false representations. § 17 of the bankruptcy act as amended by the act of March 2, 1917, c. 153, 39 U. S. Sts. at Large, 999. Friend v. Talcott, 228 U. S. 27. That principle seems to us inapplicable to the facts here disclosed because the plaintiff did not merely prove his claim in bankruptcy but retained that proof for its original face and collected dividends thereon, and also secured a substantial sum in reclamation, all by virtue of a compromise agreement.
In view of the ground on which this opinion rests, it is
The ground upon which this decision rests is not that stated by the trial judge in ordering that a decree be entered dismissing the bill, but it requires the same result and hence the decree need not be disturbed. Randall v. Peerless Motor Car Co. 212 Mass. 352, 384.
Decree affirmed with costs.