238 Mass. 20 | Mass. | 1921
We shall refer to the subdivisions of the demurrer by paragraphs, and under paragraph four it is contended that the court has no jurisdiction to examine into the internal affairs of the demurrant, the Atlantic. Corporation, which, although organized in another State, has its office and does business in this Commonwealth. It is alleged that through this instrumentality as managed by the individual demurrants, and their interlocking corporate interests and control, the plaintiff has been misled and defrauded, and that when certain fraudulent acts and combinations are set aside and consequent losses made good, the corporation instead of being insolvent will be financially able to pay for his services and transfer to him his proportionate share of the benefits of the joint enterprise which the corporation was formed
The causes assigned in paragraphs two, three and five, that the court has no jurisdiction to appoint a receiver of the plant or property situate outside of the Commonwealth, or prior to the appointment of a receiver under the laws of the State of its origin, or to adjudicate that any of its assets or funds derived from, or received on account of the plaintiff’s contract constitute a trust fund which may be marshalled, cannot be sustained. The form of relief, if the plaintiff succeeds in establishing liability, is for the court then to determine. It may be a money decree to be satisfied by the individual defendants severally or jointly, or solely by the corporation. United Zinc Co. v. Harwood, 216 Mass. 474, 476, and cases there collected. The court is not limited by specific prayers appearing in any form in the bill, but can under the general prayer decree adequate relief. Ginn v. Almy, 212 Mass. 486, 493. Eastern Bridge & Structural Co. v. Worcester Auditorium Co. 216 Mass. 426, 428.
It follows that the demurrer addressed to the prayers for specific relief, even when read in connection with the thirty-fourth paragraph of the bill, is not well taken.
The first paragraph however assigns as cause of demurrer, “That said bill is multifarious.” A demurrer on this ground is
It was long ago said that to lay down any rule generally applicable, or as an abstract proposition to say what constitutes multifariousness, is upon the authorities impossible. Robinson v. Guild, 12 Met. 323, 328. Harrison v. Perea, 168 U. S. 311. If there is a joinder of alleged causes so diverse and disconnected that the defendants will be subjected to great and useless expense, the court ordinarily will dismiss the bill. But where it appears and is admitted that through a series of different material acts adopted and participated in by the defendants acting together for a common purpose to defraud the plaintiff, the objection of multifariousness will not be entertained. Andrews v. Tuttle Smith Co. 191 Mass. 461. Noble v. Joseph Burnett Co. 208 Mass. 75, 84. Ginn v. Almy, 212 Mass. 486, 493, and cases cited. Reno v. Cotter, 236 Mass. 556, 563. We are of opinion that the bill calls for the application of this rule.
The plaintiff, a competent consulting mechanical engineer of many years experience, well qualified to construct a shipyard and to build steam cargo vessels, entered into negotiations with the United States Shipping Board Emergency Fleet Corporation for the purpose of securing a construction contract. And having selected a suitable site for a ship building plant at Portsmouth, New Hampshire, he made an oral agreement to purchase the property for $600,000. But, before the contract with the Fleet Corporation was signed, he solicited the National Engineering Corporation, a construction company located in Boston, which was able, ready and willing to assist, to undertake the construction of a shipyard on the site selected at cost plus a reasonable profit. It was through the suggestion of the officers of this corporation that the plaintiff consulted counsel for the demurrants,
We have fully considered the fundamental grounds on which the bill rest's, and, if he can prove that by secret, complicated! devices, an extraordinary and subtle scheme of manipulation was co-ordinated whereby the Atlantic Company has been purposely stripped of its available assets and rendered insolvent, so that all the profits of the enterprise under- one form or another can be claimed and appropriated by the Mason Interests, which has acquired the share of the National Engineering Corporation, the plaintiff is entitled to an accounting from the participants, even if they assert technically different and distinct rights. The interest or right claimed in the bill, as previously said, being an interest in common, they have a common liability as between themselves and the plaintiff, while the relief to be granted, whatever the form, is of the same general character. Dyer v. Clark, 5 Met. 562, 580. United Zinc Co. v. Harwood, 216 Mass. 474, 477. Ginn v. Almy, 212 Mass. 486, 493. Collins v. Stix, Kraus & Co. 96 Ala. 338. Bugbee v. Sargent, 23 Maine, 269. Farrar, Burt & Co. v. Powell, 71 Vt. 247. United States v. American Bell Telephone Co. 128 U. S. 315. Brown v. Guarantee Trust & Safe Deposit Co. 128 U. S. 403. Boyd v. Moyle, 2 Coll. 316.
The decree overruling the demurrer should be affirmed.
Ordered accordingly.