Blanchard v. Cooke

C. Allen, J. The motion of the assignee, that issues be framed for a jury, was properly overruled, as coming too late. The assignee became a party to the cause and filed his answer in February, 1886, and proceeded to a hearing before the court, and a final decree was entered on June 2,1886, from which an appeal was taken to this court, and the decree was reversed on March 23,1887. The case was again set down for a hearing before the court, and on May 4,1887, the day appointed for the hearing, he for the first time made application for issues for a jury. The presiding judge certifies that the juries had at that time been dismissed for the term, and that there had been ample time while the juries were still in court to make such request for a trial by jury. The proper time to present such request was before the hearing in 1886. By going into that hearing without presenting a request for a trial by jury, the assignee waived his right to such trial, if he had any such right before. And we think it a proper exercise of the discretionary power of the judge in respect to granting a jury trial, to refuse it at the time when the request was made. Dole v. Wooldredge, 142 Mass. 161,179. The assignee contends that the plaintiff did not in his bill allege any misappropriation by Cooke of the money received on the sale of the stock of goods at Sandwich, and therefore that evidence of such misappropriation was inadmissible. But we are of the opinion that it is too late to object to the adfnission of the evidence of such misappropriation, no special objection having been made at the hearing that the averments were not broad enough to cover it. The general charge in the bill was, that Cooke had failed and neglected to pay over the balance of the proceeds of sales, though often requested to do so by the plaintiff, but, in violation of his said agreement, had taken said proceeds and appropriated a large sum thereof, to wit, in all about $3,500 of such proceeds belonging to the plaintiff, to his own use. If an objection had been made, that, taken literally, this only charged a misappropriation of the proceeds of sales in South-bridge, and did not include the proceeds of the sale in Sandwich, it would have been competent for the court to. allow an amendment. But the hearing proceeded, without objection, on the assumption that no amendment was necessary, and a full investigation was had of the sale of the Sandwich goods, and' the [223] disposition of the proceeds. The presiding judge certifies, what indeed is apparent from a perusal of the testimony, that it had been from the beginning the main contention between the parties, whether Cooke had or had not paid to the plaintiff all that he was required to pay by the terms of the contract, or whether, in other words, he had not overdrawn his account; and that the plaintiff has claimed, in all the hearings, that the entire sum for which Cooke sold his Sandwich stock of goods was, by the terms of the written contract, to be paid to the plaintiff upon the indebtedness of Cooke to him under said contract. If it is doubtful whether the bill contains a sufficiently explicit averment in respect to the Sandwich goods, certainly at this stage of the case, no objection having .been raised at the hearing, it is too late to found any substantial argument upon this ground. The plaintiff might even now amend by making this averment more specific. The assignee further contends, that a breach of the agreement by Cooke to pay over to the plaintiff the proceeds of the sale of the Sandwich stock of goods, as soon as received by him, would not authorize the plaintiff to enter and take possession of the goods in Southbridge. In respect to this, the agreement was as follows: “ For the security of said Blanchard, the legal title in said goods shall be and remain in said Blanchard until said sum of $14,214.94, with interest at the rate of seven per cent per annum, shall have been fully paid, it being agreed, however, that said title may vest in said Cooke in the proportion to the amount which at any time he shall have paid on account of said $14,214.94, and interest, said Cooke hereby covenanting and agreeing said Blanchard shall be the legal owner of a fractional part -of the stock of goods in said store, whether it be these goods or goods subsequently purchased by said Cooke, which fractional part shall at all times bear the same proportion,” etc. This was followed by later provisions giving further effect to Blanchard’s right in respect to said goods. The proceeds of the sale of the Sandwich goods were to be applied on account of said sum of $14,214.94. It thus appears that Cooke distinctly agreed that Blanchard should be the legal owner of a fractional part of all the goods in Southbridge, whether then or thereafter purchased, until full payment of the $14,214.94. The former [224] decision of this court was, that if there had been a substantial breach of the contract by Cooke, then the plaintiff had the right to take possession while the default continued. 144 Mass. 207, 228. The objection now taken appears to be fully covered by the former decision. This disposes, we believe, of all the questions of law presented upon the present appeal. Decree affirmed.