208 F. 646 | D. Mass. | 1913
The plaintiff’s writ is dated September 8, 1911. A motion to dismiss was denied, and a plea in abatement overruled, March 30, 1912. 195 Fed. 313. The declaration was amended, and a demurrer to the amended declaration overruled, January 31, 1913. 202 Fed. 602. The opinion then filed explains the nature of the case and summarizes the allegations of the amended declaration then material.
On March 4, 1913, the defendants answered the amended declaration. Besides a denial of each and every allegation, their answer contains, among others, affirmative allegations in substance as follows:
Tbe cause of action declared on did not accrue witbin six years before tbe suing out of tbe plaintiff’s writ.
Tbe action was not commenced witbin six years next after tbe cause of action accrued.
Tbe company whereof tbe plaintiff is trustee was dissolved and its charter terminated by decree of tbe Maine Supreme Court entered February 17, 1905, in equity proceedings under Maine statutes, providing for voluntary dissolution of corporations; a trustee' was on that day appointed to wind up its affairs according to said statutes; and from that day until tbe present time, and for more than six years prior to the bringing of this suit, tbe entire control and management of its affairs was in said court, and tbe defendants have not bad, nor could have, anything to do therewith. Tbe cause of action accrued before February 17, 1905, and not witbin six years prior to tbe suing out of tbe writ.
In a “special replication,” filed April 5, 1913, the plaintiff admitted:
“That on said date, February 17, .1905, a trustee was appointed, as provided by the statutes of the state of Maine, to wind up the affairs of the corporation"
■ — and denied all the remaining allegations above summarized from the answer.
On April 10, 1913, the defendants demurred to this special replication, assigning causes of demurrer below considered.
On April 12, 1913, the plaintiff moved to strike out this demurrer, for the alleged reasons that the replication is in exact compliance with the motion to require it, and the statute whereon the same was based; it contains no new allegations not contained in the amended declaration, and can therefore raise no new issue not open on demurrer to the declaration; it does not in fact raise any such new issue; Rev. Raws Mass. c. 173, § 31, was not intended to enable a defendant, by an order requiring a replication, to continue to file dilatory pleadings preventing the plaintiff from proceeding to trial. This motion was denied April 28, 1913.
On May 3, 1913, the special replication was amended by adding thereto the following:
“The plaintiff further says that the defendants and each of them (in pursuance of 1he plan and conspiracy set forth in his amended declaration) fraudulently concealed the cause of action set forth in said amended declaration from the knowledge of the trustee appointed on February 17, 1905, as aforesaid, and that said trustee did not, prior to six years before the commencement of this action, or for some time thereafter, discover said cause of action.”
On May 16, 1913, the defendants moved (leave to do so having been reserved to them when the above amendment was allowed) to strike out the amendment on the ground that it is manifestly false and sham pleading. In their motion they alleged, among other things :
That it is manifest on the face of the record that the cause of action and the matters and things complained of in the declaration could not be concealed by the defendants, not being within their control or secret knowledge, but being matters of record or of common knowledge, presumed to have been known by the trustee, of which he had means of discovery, and must have discovered if he exercised due diligence.
That it is of public record and general knowledge that the claims whereon the cause of action is based have been litigated in the Massachusetts courts for more than ten years before this suit was begun. (Certain Massachusetts decisions were here cited.)
That the plaintiff ought not to be allowed to evade the question raised under the statute of limitations by tlieir demurrer to the replication, by. thus amending said replication.
On May 16, 1913, the defendants also demurred to the replication as amended, assigning the grounds assigned in their demurrer to the
In his writ the plaintiff describes himself as trustee of the company. In his declaration he says he is successor as trustee to Whitehouse, appointed trustee by the Maine court’s -decree of February 17, 1905, “in a proceeding in equity for the dissolution of said corporation and the appointment of a trustee to wind up its affairs in accordance with the statutes of Maine in such case made and provided.” In the same declaration he further says that the decree vested in said Whitehouse, as statutory successor and quasi assignee of the company, all its property, debts, claims, and choses in action; also that by Whitehouse’s resignation, and his own appointment in Whitehouse’s place by the same court, he had succeeded to Whitehouse in title to all the company’s property and rights of action; and in the same declaration he says he has been duly appointed by the same court to collect all debts and claims due the company, and to take possession of all its property, of every name and nature.
The Maine statutes here referred to, the proceedings under them in the Maine court, and the effect of these proceedings have been considered in the opinion dated March 30, 1912, upon the plea in abatement and motion to dismiss in this case. 195 Fed. 313. It was there held, in the plaintiff’s favor, that the trustee appointed in 1905 had capacity to bring this suit, because his appointment vested him, by operation of law, with the title of the dissolved corporation (195 Fed. 321, 322), and that his power to sue was unaffected by the limit of three years during which the statutes allowed the corporate existence of the company to continue, for certain limited purposes, after its final dissolution by the decree entered February 17, 1905.
The amendment to the replication is an attempt to avert the above conclusion by setting up that the trustee under the appointment made February 17, 1905 (or his successor, the plaintiff), did not find out that any cause of action existed prior to that time; the same having been fraudulently concealed by the defendants, and not discovered by the trustee until within six years before the date of the writ.
The defendants contend that the amended declaration must be taken to have fully and finally set forth the cause of action, and that, when the plaintiff undertakes to say in his amended replication that the cause of action was fraudulently concealed “in pursuance of the plan and conspiracy” described in the declaration, he so modifies or adds to the description there given as to present a cause of action different in some respects from that therein stated. The defendants contend that nothing of this kind can be done in a replication, that the attempt to do it constitutes a “departure” in pleading, and of itself makes the replication bad on demurrer. If the allegation referred to must be understood as setting up another act, planned as part of the combination or conspiracy complained of, and thereafter done by the defendants to the Goddu Company’s injury, I think their contention right, and sustain their demurrer on the grounds, numbered 3-6, inclusive. If the words quoted need not be so understood, and the declaration seems to me so framed as to leave this subject to some doubt, they are without importance upon the questions raised by this demurrer.
If the demurrer has been rightly sustained, the defense that the suit is barred by the statute of limitations has not been met. Judgment is therefore to be .entered for the defendants.