Hill v. Fuller

Lorusg, J. [After the foregoing statement of the case.] We are of opinion that the finding made by the master was warranted by the evidence. The defendant has objected that however it may be with the $3,388.33 due to the plaintiff on his separate account, there is nothing on which a finding can be made that the bonds were applied to the joint debt on November 7, 1889. The defendant relies in support of this objection on the fact that what the brokers are reported to have said on the day when the plaintiff tendered them half the joint debt was that “ they had applied the plaintiff’s private account in part liquidation of the joint account ” ; and he argues that all that the word “ account ” can mean is the $3,388.33. But if these two bonds were being carried by the brokers for the plaintiff they were technically a part of that account. See in this connection Covell v. Loud, 135 Mass. 41; Weston v. Jordan, 168 Mass. 401, 404 ; Chase v. Boston, 180 Mass. 458 ; Rice v. Winslow, 180 Mass. 500, 502, 503. In addition to the legal relations of the parties, such an account, in the language of the street, includes the securities which are being carried by the broker for his customer. The report therefore is correct, both in law and in the practice of the street, when it says that the plaintiff dealt with the brokers “ in a similar way upon his private account, upon which on November 7, 1889, there was to his credit, subject to his check, in cash, three thousand three hundred eighty-eight and 33-100ths dollars (3,388.33) and two South Boston Railway five per cent bonds.” If any doubt could be entertained on that point, it is removed by the finding of the judge of the Superior Court in favor of the brokers when the [199] plaintiff brought an action of trover against them for conversion of these two bonds. The defendant has argued that that finding may have been based on a failure to prove a demand and refusal. But on this report there is no room for that argument. The only defences set up by the brokers were payment and the application by agreement of the separate account to payment of the joint account, and a declaration in set-off. The allegations of the declaration not having been denied stood admitted. R. L. c. 178, § 35. On the facts reported there was no payment apart from the application of the separate account to the joint account; and a set-off cannot be made in an action of tort. The only defence left is that the separate account had by agreement been applied to the joint debt. This must have been held to mean that the whole account, including the two bonds which were being carried by the brokers for the plaintiff had been so applied. So far the case stated in the report was a clear one. What raises a doubt is the fact that monthly statements of both accounts subsequently were rendered by the brokers which were wrong, if the above explanation is correct. We are of opinion that the master was justified in inferring that in the rendering of these accounts a mistake had been made. It is to be noticed that no such statement was rendered after the bill now before us was filed. The defendant’s next objection is that after the application of the plaintiff’s separate account to the payment of the joint debt on November 7, 1889, there was a balance still due on the joint debt of $265.48; that a bill cannot be maintained for contribution until the whole joint debt is paid, or at any rate unless the plaintiff deducts the amount remaining unpaid, in which connection he refers to Brinley v. Kupfer, 6 Pick. 179, and Williams v. Henshaw, 11 Pick. 79, 84, 85. Assuming that to have been the situation when the bill was filed in July, 1894, it would seem that the statute of limitations has long since run against the brokers, and on the report the brokers must be taken to have acquiesced in that as the practical ending of all claims on their part, and the action can now be maintained. That an action may be maintained if outstanding debts due the partnership are barred see Williams v. Henshaw, 12 Pick. 378, 380. A fact occurring after the filing of the bill which makes good the plain [200] tiff’s cause of action may be set up by amendment. Chancery Buie 25. The defendant’s next defence is that even if the bonds were accepted in payment by the brokers at their market value, this is not a payment. If property is given and accepted at a valuation as payment of a joint indebtedness, that indebtedness is ended, and an action for contribution can be maintained. The defendant insists that this is not so because it is held that in an action for contribution the plaintiff does not make out a case by showing that he has given the creditor his non-negotiable note, as was admitted in Amos v. Bennett, 125 Mass. 120. See Davis v. Parsons, 157 Mass. 584. But the reason for that is because the debt due the creditor is not thereby ended. Lastly, the defendant asks us to modify the decree as to costs, because the plaintiff delayed four years and eight months before filing the bill now before us, six years and two months before making the amendment on which alone this bill can be maintained, .and over four years after the master’s report was made before it was set down by him for confirmation. So far as these last two delays go, if the plaintiff was guilty of laches the defendant is open to the same charge. If the defendant had thought that on the whole it was better for him to do so, he could have brought the case to trial at any time. He seems to have preferred the benefit of delay to avoiding the chance of having to pay six per cent interest. We see no reason for differing from the Superior Court in awarding costs to the plaintiff notwithstanding the first delay. Decree affirmed with costs.