1 Mass. App. Ct. 38 | Mass. App. Ct. | 1973
Volpe Construction Company, Inc. (Volpe) brought this action of contract in the Superior Court against the Trustees of Tufts College (Tufts) to recover money for labor and materials claimed to be due under a written contract for the construction of a college dormitory. At that time there was pending in the same court a bill for declaratory relief brought by Tufts against Volpe to determine the rights and duties of the parties under the same contract as they pertained to the employment of members of minority groups in the construction of the dormitory. (See Trustees of Tufts College v. Volpe Construction Co. Inc. 358 Mass. 331, which dealt with these issues in detail.) In the instant action, Tufts filed an answer in abatement alleging that Volpe was required to pursue its claim by way of a compulsory counterclaim in Tufts’ suit pursuant to Rule 32 of the Superior Court. The answer was sustained after hearing, and this matter is now before us on Volpe’s exception to that action.
The issue to be decided is whether, as a matter of law, the trial judge properly sustained Tufts’ answer in abatement. Resolution of this question requires inquiry into the in-tendment of Rule 32 which states in pertinent part: “The answer, without cross bill, must set up any counterclaim, against any one or more of the parties, arising out of the transaction which is the subject matter of the suit, which might be the subject of an independent suit in equity. The answer may set up (a) any counterclaim of a legal nature, against any one or more of the parties, arising out of such transaction, or (b) any counterclaim against the plaintiff alone, not arising out of such transaction, which might be the subject of an independent suit in equity” (emphasis supplied).
As applied to this case the first requirement of the compulsory counterclaim provision of Rule 32, if it applies, would be that Volpe’s claim for money due for labor and materials on a construction contract must arise out of the same transaction which was the subject of Tufts’ earlier
The second and additional requirement of the first sentence of Rule 32 is that the claim be one “which might be the subject of an independent suit in equity.” Tufts argues that an action for money due on a contract might be such “subject” as, for example, in a creditor’s bill to reach and apply. G. L. c. 214, § 3 (7). Such a construction of Rule 32 was considered in Potier v. A. W. Perry, Inc. 286 Mass. 602. The defendant in that case counterclaimed for money due for rent under a lease and for electric light furnished to the plaintiff. The court held that “the counterclaim alleged against the plaintiffs by the defendant in its answer is purely contractual in nature. It consists of two debts arising
Exceptions sustained.