absconded, Or is absent therefrom and has left no agent therein and his whereabouts are unknoWn.” This Section is as follows: “The court may order said property, or its proceeds acquired by mortgage, lease or sale, to be applied in payment of charges incurred or that may be incurred in the Support and maintenance Of the absentee’s Wife and minor children, and to the discharge of such debtS aS may be proved against Said absentee.” The petitioner was the Wife of the absentee, and she obtained from him a divorce a Vinculo, with a decree for alimony in gross to the amount of $4,000. For this, execution was issued, and she made her petition to the probate court to have it proved and allowed as a debt against the estate of her former husband, in the hands of the receiver. The principal question in the case is whether this is a debt, within the meaning Of the Statute. The origin of the claim in the obligation of the husband to provide for her support does not militate against its allowance; for the Statute provides for the payment of charges of this kind which are not directly debts. . A decree for alimony in a gross Sum, which is a final ajudication for the payment of the amount named, is Within the constitutional provision that “full faith and credit shall be given in each state * * * to the judicial proceedings of Other states.” A suit may be brought to enforce the payment of it as a debt, in a State Other than that in which it was entered. Page v. Page, 189 Mass. 85, 75 N. E. 92. An obligation under such a decree is plainly in the nature of a debt, and for most purposes it can fairly be called a debt. In Gray V. Bennett, 3 Metc. 522–526, the Court said: “The Word ‘debt is of large import including not only debts of record or judgments and debts by specialty, * * * and in its popular sense includes all that is due to a man under any form of obligation Or promise. And long ago it was held, as expressed by Blackstone, that ‘whatever the laws order anyone to pay, that becomes incidentally a debt which he hath beforehand contracted to discharge.’” In Howard V. Howard, 15 Mass. 196, in referring to a liability for alimony, the court used this language: “The debt is certain and it is proved by record, and the decree is in effect as much a judgment as if rendered on the Common-law side of the court.” Mr. Justice Field, in Knapp v. Knapp, 134 Mass. 353, said, “A decree for alimony, whether for alimony already due or to become due in the future is in a certain Sense a debt of record established by a judgment.” So in Chase V. Chase, 105 Mass. 385, Mr. Justice Morton Speaking of divorce a Vinculo and divorce a mensa et thoro, said, “The judgment for alimony in either case creates a debt of record in favor of the Wife.” It Was held in that case, as it previously had been held in Livermore v. Boutelle, 11 Gray, 217,

71 Am. Dec. 708, that a decree for alimony is a debt Within St. 13 Eliz. c. 5, as to conVeyances in fraud of Creditors. In Knapp V. Knapp, 134 Mass. 353, and in Burrows V. Purple, 107 Mass. 428, there is language recOgnizing a decree for alimony in gross as a kind Of debt.

The case of Bailey v. Bailey, 166 Mass. 226, 44 N. E. 143, following and explaining Chase V. Ingalls, 97 Mass. 524, decides that a liability for alimony is not “debt or damage in a civil action,” within the meaning of the Statute in regard to arrest upon execution. But it hardly affects the general question with which we are dealing. The decisions that claims for alimony are not provable in bankruptcy rest upon reasons that have little application to this case. We are of opinion that the Word “debts” in this statute is used in its broad Signification, and includes claims like that now before us.

The remaining question is whether this debt can be proved against the absentee and allowed against the property in the receiver's hands without personal notice to the absentee. From the nature of the case we think it must be provable, upon a proper general notice to the receiver and to persons within the jurisdiction interested in the esstate. The reason for the appointment of the receiver is that the whereabouts of the owner of the property are unknown and he has left no agent properly to represent him in caring for his property, and to perform his obligations. In most cases to which the statute applies it would be practically impossible to give personal notice to the absentee. We are of opinion that the notice in the present case was sufficient. Bonnemort V. Gill, 167 Mass. 338, 45 N. E. 768; Minot v. Purrington, 190 Mass. 336, 77 N. E. 630.

Decree affirmed.

[blocks in formation]

received the benefits of a sale under a contract binding the seller not to sell other similar presses to be used for the same purpose, be allowed to defend an action for breach of this provision of the contract on the ground that it was ultra VII'eS. [Ed. Note.—For cases in point, see vol. 12, Cent. Dig. Corporations, §§ 1556, 1557.]

4. SAME—REORGANIZATION - ASSIGNMENT OF PROPERTY-RIGHTS TRANSFERRED. An assignment of all corporate property, including choses in action, by a corporation to its successor, conveyed a right of action for breach of a contract, but Without a special provision to that effect, or the consent of the other party, did not convey rights growing out of fiduciary relations between the parties created by provisions of the contract giving the assignor certain rights as to the profits of other contractS. [Ed. Note.—For cases in point, see vol. 12, Cent. Dig. Corporations, §§ 2310, 2311.]

5. EQUITY – REFERENCE – REOPENING CASE— DISCRETION OF MASTER. The hearing of further evidence by a master after objections to the report have been heard is Within the master’s discretion. [Ed. Note.—For cases in point, see Vol. 19, Cent. Dig. Equity, § 892.]

6. SAME—FINDINGs—CoNCLUSIVENEss. Where the order referring a case to a master does not require him to report the evidence, objections as to the sufficiency of the # to warrant certain findings are not tenalole, [Ed. Note.—For cases in point, see vol. 19, Cent. Dig. Equity, § 911.]

7. APPEAL—HARMLESS ERROR-ADMISSION OF EVIDENCE. In an action for breach of contract, defendant is not prejudiced by the admission of evidence as to a measure of damages not adopted by either master or the court. [Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, $ 4154.]

8. DAMAGES—BREACH OF CONTRACT. Where printing presses adapted to a certain use were sold under an agreement by the seller not to sell similar presses to any One else to be used for the same purpose, the buyer, on breach of the restrictive agreement, was entitled to recover the difference between the Value of the presses as protected by the restriction and their market value as affected by the breach of the agreement. [Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Damages, § 302.]

9. SAME—INTEREST ON RECOVERY. In an action for breach of a contract by a seller of machinery not to sell similar machinery to others, the buyer was entitled to interest on the amount of the recovery from the date of the breach. [Ed. Note.—For cases in point, see Vol. 15, Cent. Dig. Damages, § 141.]

10. SAME-RECOVERY AGAINST PERSON JOINTLY LIABLE. Machinery was sold by defendant to plaintiff under an agreement not to sell similar machinery to any one else. This agreement was violated, and plaintiff sued the defendant, and brought action in another state against the purchaser. The latter action was compromised by the payment of a sum of money to plaintiff. Held, that this was a partial satisfaction. which must be deducted from the amount of plaintiff's recovery against defendant. 11, PARTIES—INTERVENTION-RIGHT TO INTERVENE-DELAY. In an action by a corporation on a cause of action assigned to it by its predecessor, the

plaintiff contended through many years of litigation that it was entitled to recover certain damages growing out of the breach of the contract on which suit was brought. After a holding that this contract was unassignable, and plaintiff not entitled to recover the particular damages claimed, and after the appointment of a receiver for defendant, plaintiff's predecessor sought to intervene. Held, that leave to intervene was properly denied.

[Ed. Note:-For cases in point, see vol. 37, Cent. Dig. Parties, § 69.]

Appeal from Superior Court, Suffolk Coun

Action by the New York Bank Note Company against the Kidder Press Manufacturing Company. The action was referred to a master, and from a decree overruling exceptions to the master's report, and affirming it, awarding plaintiff damages and directing the payment Of the Same Out of certain funds in Court, the receivers of the defendant Corporation appeal. Modified and affirmed.

Moulton, Loring & Greenhalge, for appellants. E. P. Lyon, I. R. Clark, and G. F. Ordway, for appellee New York Bank Note Co. Victor J. Loring, for appellee Kidder Press Mfg. Co.

BRALEY, J. The right of the plaintiff as a creditor to participate in the distribution of the assets in the possession of the receivers depends primarily upon the validity and Construction Of the COntract made betWeen the defendant and the New York Bank Note Company of New Jersey, and later assigned to the plaintiff. Appeals having been taken by all parties from the interlocutory decrees, the various questions of title, of liability, and of the measure of damages, if the plaintiff is entitled to prove for any amount, are open. At the outset it appears that the defendant being engaged in the manufacture and sale of an improved printing perfecting press entered into a contract with the plaintiff's assignor, a corporation which printed and sold strip tickets used by transportation companies, by the terms of which among other provisions, it agreed not to sell this type of press to other customers to be used by them for a similar purpose. While the defendant Was left unrestricted to make and Vend the press for other uses to which it might be adapted, yet as the principle object was to create a partial monopoly the first contention is that for this reason the contract Was Void. At common law a Sound public policy Was held to require that the individual effort and competition which furnished an opportunity for earning a livelihood, or the extension of trade; should be unrestricted, as the Welfare of the community demanded that the industrial and business activity of its members should be unhampered. But a distinction was early recognized between contracts which wholly restricted trade, and those which partially limited its developement and extension either as to territory, or to persons; the first being held Void, while the latter, if reasonable, has been upheld as Valid. Gamewell Fire Alarm Telegraph Co. v. Crane, 160 Mass. 50, 56.35 N. E. 98, 22 L. R. A. 673, 39 Am. St. Rep. 458; Anchor Electric Co. v. Hawkes, 171 Mass. 101, 105, 50 N. E. 509, 41 L. R. A. 189, 68 Am. St. Rep. 403; Diamond Match Co. v. Roeber, 106 N. Y. 473, 13 N. E. 419, 60 Am. Rep. 464. The nature of the business in which the New Jersey Company was engaged appears to have been of such character that it was not unreasonable for its own protection that a stipulation should be inSerted which left the defendant at liberty to sell this press to all the world for other purposes, but prohibited sales to those who by their competition might, and probably would ruin its business, and this restriction, therefore, did not render the contract invalid. Morse TWist Drill & Machine CO. V. Morse, 103 Mass. 73, 4 Am. Rep. 513; Gibbs v. Consolidated Gas Co. of Baltimore, 130 U. S. 396, 9 Sup. Ct. 553, 32 L. Ed. 979; 2 Kent, Com. (14th Ed.) note 10, “Restraint of Trade,” and cases there Collected; New York Bank Note CO. V. Hamilton Bank Note Engraving & Printing Co., 180 N. Y. 280, 73 N. E. 48. The defendant further claims that the COntract Was in Violation of the act of CongreSS of July 2, 1890 (26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]) commonly known as the “Anti-Trust Law,” but if applicable neither in its answer, nor by its croSS-bill is this ground for relief directly or inferentially stated. If at inception the contract was void as being prohibited by this statute, then to be available such a defense must be Specially pleaded. Rev. Laws, c. 173, § 27; Granger v. Ilsley, 2 Gray, 521; Bradford V. Tinkham, 6 Gray, 494; Rice v. Enwright, 119 Mass. 187; Hunting v. Downer, 151 Mass. 275, 278, 23 N. E. 832. It is also urged as another reason for avoidance that the contract was not within the scope of the defendant's express or implied corporate powers. But if a foreign corporation, and the terms of its charter are not shown, it is alleged in the original bill, and not denied by the answer, that it was Organized for the purpose of making and dealing in printing presses, of which the manufacture and sale of the perfecting press comprised only a part. While created for the purpose of engaging in a particular kind of business, there was no prohibition upon the form of contracts it might adopt to effect a sale of its product, and it should not be permitted to repudiate a transaction if otherwise valid, and under Which it received, and has retained the consideration as being in exceSS Of itS corporate powers, when such a course must result in positive injury to the plaintiff. Slater Woolen Co. v. Lamb, 143 MaSS. 420, 421, 9 N. E. 823; Prescott National Bank v. Butler, 157 Mass. 548, 549, 32 N. E. 909; Nims V. Mt. Hermon Boys' School, 160 Mass. 177, 179, 35 N. E. 776, 22 L. R. A. 364, 39 Am. St. Rep. 467. The contract being neither im

[ocr errors]

moral nor void for want of corporate authority, the defendant became bound to its full performance. Without reviewing the evidence there was abundant proof to support the finding that by the sale of a similar press to the Hamilton Bank Note and Engraving Company, without the assent of the New Jersey Company, there was a breach by the defendant, which entitled that company to recover damages. But although this corporation Was dissolved without having brought Suit, and was succeeded by the present plaintiff, to whom all of its corporate property, including choses in action were conveyed and assigned, the fiduciary relations between the parties under the term of the contract relating to the proceeds of other sales were such, that without a provision to that effect, which is not found, or without the defendant's assent, Which Was not given, the plaintiff Was not Substituted, and hence the assignment paSSed only the bare right of action which previously had accrued to the aSSignor. BOStOn Ice Co. V. Potter, 123 Mass. 28, 30, 25 Am. Rep. 9; New York Bank Note CO. W. Hamilton Bank Note & Engraving Co., ubi Supra; Robinson V. Drummond, 2 B. & Ad. 303; Arkansas Valley Smelting Co. v. Belden Mining Co., 127 U. S. 379, 8 Sup. Ct. 1308, 32 L. Ed. 246; DelaWare County V. Diebol Safe & Lock Company, 133 U. S. 473, 10 Sup. Ct. 399, 33 L. Ed. 674; Burck V. Taylor, 152 U. S. 634, 14 Sup. Ct. 696, 38 L. Ed. 578. Upon the entry of an interlocutory decree which thus properly defined and limited the plaintiff’s claim, the case was referred to a master for the assessment of dannageS. To his report numerous exceptions were taken by both parties concerning the exclusion and admission Of evidence aS Well as to the rule adopted by him for the ascertainment of damages, but While no appeal was taken by the plaintiff from the decree overruling them, and confirming the report, the defendant having appealed its exceptions are next to be considered. These exceptions so far as they relate to the reopening of the hearing after the submission of the draft report call for no Comment, as the admission of further evidence offered by either party after hearing their objections and before finally settling his report was within the master's discretion. Under the decretal Order, the master was not required to report the evidence, and those exceptions which depend either upon a different view of the testimony, or that some of his findings were not supported by sufficient proof, are not tenable, and may be dismissed without further remark. O’Brien v. Murphy, 189 Mass. 353, 75 N. E. 700. And the remaining exceptions which relate to the measure of damages present the principal Question. It is evident that the plaintiff endeavored to obtain compensation based upon the difference between the cost of printing tickets, and their price which the assignor was receiving under its contracts. But this estimate not having been taken as a measure of Computation either by the master, or the trial Court, the defendant has not been prejudiced by evidence admitted in support of this position, and its exception to such admission becomes immaterial. The report recites that the parties agreed that the Sale to the Hamilton Company was before the date of the assignment, and as this sale was the specific act of Violation, Whatever cause of action the New Jersey Company possessed, then accrued. At that time the assignor OWned tWO preSSes Which if new could have been bought in the market for much less than the Sulm paid for the Second press, the price of Which alSO Was taken as the basis of Valuation of the first press bought before the contract was made. The value of both presses when fitted for use in printing strip tickets, and protected by the restriction may be fairly Said to have been equal, and besides, this value even if divided by the recitals in the contract was the total estimate fixed by the agreement. Parker V. Simonds, 8 Metc. 205, 213. To take the difference between this amount which as to one press was enhanced by the COSt Of Certain mechanical changes, and the market price, established the loSS caused by the depreciation, and provided a correct measure of compensation. What further elements of damage might have been presented if the assignor had continued in business, and brought Suit need not be considered, as within this limit at least it Would have been entitled to recover. Westfield v. Mayo, 122 Mass. 100, 105, 23 Am. Rep. 292; Sargent v. Franklin Ins. Co., 8 Pick. 90, 99, 19 Am. Dec. 306; Noble V. Ames Mfg. Co., 112 Mass. 492, 497; Somers v. Wright, 115 Mass. 292; Townsend v. Nickerson Wharf Co., 117 Mass. 501; Manning V. Fitch, 138 Mass. 273, 277; Whitehead & Atherton Machine Co. v. Ryder, 139 MaSS. 366, 371, 31 N. E. 736; Abbott V. Hapgood, 150 Mass. 248, 22 N. E. 907, 5 L. R. A. 586, 15 Am. St. Rep. 193. The addition of interest was proper, for the amount assessed became due when the contract Was broken, and as the plaintiff should be fully compensated it ought not to suffer loss from the delay in payment. Hovey v. Newton, 11 Pick. 421, 422; Ainsworth V. Lakin, 180 Mass. 397, 62 N. E. 746, 57 L. R. A. 132, 91 Am. St. Rep. 314; Peabody v. New York, New Haven & Hartford Railroad Co., 187 Mass. 489, 73 N. E. 649. But though none of the exceptions can be sustained it is also contended that this assessment should be reduced by deducting a sum subsequently received by the plaintiff from the Hamilton Company. This question comes up in the form of a report which states that all the facts relating to the material issues appearing in the record of the entire litigation are to be considered in its determination. After bringing a Suit at law in this state which appears still to be pending, and to which the original bill in the present case is ancillary, the plaintiff proceeded with an action against the Hamilton Com

pany already begun in another jurisdiction. A demurrer having been interposed it had been obliged to join the defendant as a party. New York Bank Note Co. V. Hamilton Bank Note & Engraving Co., 83 Hun, 593, 31 N. Y. Supp. 1060. And instead of prosecuting the action here in which any liability of the defendant could have been Speedily determined, it chose to proceed with the litigation in another forum. New York Bank Note CO. V. Hamilton Bank Note Engraving & Printing Co. and Kidder Press Mfg. Co., ubi Supra. But wherever prosecuted; and Whether at law or in equity, the plaintiff at Common law had Only One cause of action, namely, the chose assigned by tile New Jersey Company. It now suggests notwithstanding the express allegations of the Dill before uS to the contrary that the defendant was joined merely for conformity, while relief and damages Were asked Only as to the principal defendant. When, however, the history of the entire controversy is read, form ceases to be of primary importance, and whatever its attitude the only object sought was the recovery of damages from both parties, and for injunctive relief solely because this defendant had broken its contract. New York Bank Note Co. V. Kidder Press Mfg. Co., 176 Mass. 151, 152, 57 N. E. 348. The multiplication of actions for the same cause whether Sounding in tort Or Contract does not have the effect of multiplying damages, and while the release under Seal is couched in general terms, no attempt was made to show existence of any other demand, and it is to be assumed that the Suit was brought alld prosecuted in good faith. Smith V. Way, 9 Allen, 472; Burnet V. Smith, 4 Gray, 50. Indeed the discontinuance of the action, and discharge of the bond sufficiently indicates that the compromise was regarded as a settlement of the litigation with the releasee. See Brown v. Cambridge, 3 Allen, 474, 476; Aldrich V. Parnell, 147 Mass. 409, 18 N. E. 170. It is not material to determine whether the defendant and the company were joint debtors within the meaning of section 1942 of the Civil COde Of Procedure of the State Of New York, relating to the compounding of claims against joint debtors, under which one debtor is not discharged by settlement with the other, as the plaintiff's claim had not been merged in a joint judgment. Before this Settlement had been effected the amount which the plaintiff could recover had been established by decree of a court of competent jurisdiction, to the final decision of which it had submitted its cause. In either jurisdiction, although the breach of the contract in itself Was not a tort, it was entitled to but one satisfaction of damages, whether obtained by compromise when unliquidated, or by payment after the amount had been ascertained and adjudicated. Vanuxem V. Burr, 151 Mass. 386, 388, 389, 24 N. E. 773, 21 Am. St. Rep. 458. In Stimpson v. Poole, 141 Mass. 502, 505, 6 N. E. 705, 707, it was said “money paid which is to be in full for an unliquidated or a disputed claim is taken in discharge of it, and constitutes a full defense against any further assertion of the Claim. What is received is deemed in law to be a Satisfaction of the claim.” That the Hamilton Company in fact might not have been liable to respond does not affect the adjustment, or the application of the payment. Leddy v. Barney, 139 Mass. 394, 397, 2 N. E. 107. If the reservation by the releasor that it did not relinquish its claim against the defendant prevents the release from being a full discharge, the receipt of a partial payment likewise is to be treated as a partial Satisfaction, which the plaintiff must apply in reduction of the sum awarded by the decree. Brown v. Cambridge, ubi supra; Wood V. Mann, 125 MaSS. 319; Hudson v. Baker, 185 Mass. 122, 125, 70 N. E. 419. This conclusion being adverse to the plaintiff, it then contends that the appeal of the New Jersey Company from a decree which denied a petition for leave to intervene should be sustained. After many years of litigation, when it became apparent that the contract was unassignable, this right is asked for the purpose of getting enhanced damages, which if recoverable would go to the plaintiff, but if for no other reason this lapse of time, united with the persistent effort in the courts of another state at a large expense to the estate unsuccessfully to maintain a contrary proposition, is sufficient to justify the refusal by a court of equity to allow further delay to the manifest injustice of other creditors, as well as the debtor. Cooke V. Barrett, 155 Mass. 413, 414, 29 N. E. 625. We do not find it essential to specifically consider other questions of procedure raised by the appeal of the receivers, and referred to in their brief. It may be presumed that until their accounts are passed, and the claims of intervening creditors have been adjusted, no order for distribution will be made, and that payment to the plaintiff will not be Ordered until these steps have been taken. It follows from What We have Said that all the interlocutory decrees and orders from

which appeals have been taken are affirmed. .

But while affirming the second decree because no error is found therein at the time of entry, it is to be modified either by an interlocutory, or in the final decree by deducting from the amount of damages the payment received by the plaintiff, with such allowance of interest at the legal rate as may be considered expedient.

Ordered accordingly.

(192 Mass. 346) • . DE FRIEST et al. W. BRADLEY et al.

(Supreme Judicia! Court of Massachusetts. Suffolk. June 20, 1906.)

1. LANDLORD AND TENANT—EXTENSION OF LEASE—EXERCISE OF OPTION. Where a lease contains an agreement for an additional term at the election of the lessee, the exercise of the option by the lessee results

in a present demise, subject to all the conditions and covenants of the original lease, and taking effect at the expiration of the first term, and no subsequent agreement or second lease is necessary. [Ed. Note.—For cases in point, see vol. 32, Cent. Dig. Landlord and Tenant, §§ 270–289.]

2. SAME-SUBSEQUENT AGREEMENT. The parties to a lease may, by a subsequent agreement, prolong the time, although the lease is silent on this subject. 3. SAME-EXTENSION OF LEASE—EFFECT-CANCELLATION. A tenant made improvements on an oral understanding that the term should be extended for five years after the termination of the existing lease. Afterward the parties made a written agreement granting an extension of the term, subject to all the terms of the original lease, one of which gave the lessor the right after a notice to cancel the lease. Held that the written agreement for an extension controlled the oral negotiations preceding it, and gave the lessor a right to terminate the tenancy by compliance with the provisions upon that point of the original lease.

Appeal from Superior Court, Suffolk County; Franklin G. Fessenden, Judge.

Action by William T. De Friest and others against Richards M. Bradley and others. From a decree dismissing the bill, plaintiffs appeal. Affirmed.

Warner, Warner & Stackpole, for appellant Wm. J. Lemp Brewing Co. Dickson & Knowles, for appellant De Friest. Ropes, Gray & Gorham, for appellees.

BRALEY, J. The original lease contained neither a COVenant for renewal, nor an agreement for an additional term at the election of the lessee. If the last provision had been inserted, and the option had been exercised, there would have been a present demise to take effect at the expiration of the first term, and no subsequent agreement or second lease would have been necessary. Stone V. St. Louis Stamping Co., 155 Mass. 267, 270, 29 N. E. 623. The leasehold estate would have been thus prolonged to the end of the entire period, subject, to all the conditions and covenants, including that of the right of the lessor to cancel the lease at his pleasure upon giving written notice, and paying the stipulated sum which was to be graduated in amount according to the time the lessee had occupied the premises. Dix V. Atkins, 130 Mass. 171; Toupin v. Peabody, 162 Mass. 473, 39 N. E. 280. It was, however, Within the contractual power of the parties by a later arrangement to prolong the term although the lease was silent on this subject, and this was done by an inStrument which has been referred to as the agreement of extension, which was executed and became operative before the term provided for in the lease had expired. In legal effect this agreement operated to extend the term as effectually as if its principal proviSion had been inserted in the lease in the form of an option of extension, for a further definite period at the election of the lessee, Who Subsequently made such an election. By

« ForrigeFortsett »