Flynn v. Howard

Crosby, J. This is an action brought for the benefit of Daniel C. Fletcher, to recover the amount of a judgment rendered in the Superior Court in favor of the plaintiff Flynn against the defendant and John J. Walsh and H. Theodore Fletcher. The plaintiff in his declaration alleges that while the original action was pending in the Superior Court he, in writing, assigned to Daniel C. Fletcher the cause of action mentioned therein and that “this action is brought for the use and benefit of said Daniel C. Fletcher.” It therefore appears that the plaintiff Flynn is only nominally a party, and that the real party interested in recovering the amount of the judgment is the assignee Fletcher. The defendant’s amended answer alleges that “one H. Theodore Fletcher, who is a co-judgment debtor with himself and John J. Walsh, and upon which judgment this suit is based, paid for and is the equitable owner of said judgment though carrying the same in the name of Daniel C. Fletcher by assignment from Joseph J. Flynn.” The defendant contends that H. Theodore Fletcher paid for and is the equitable owner of the judgment, although the assignment was made to Daniel C. Fletcher, and that the latter has no interest either legal or equitable in the judgment. 1. In view of the issue raised by the pleadings as to whether Daniel C. or H. Theodore Fletcher was the real owner of the judgment under the assignment, evidence as to the consideration for the assignment, the amount thereof, the time and place of [247] payment and the other circumstances admitted in evidence, was all competent, and the plaintiff’s exception to the admission of this evidence must be overruled. 2. The plaintiff’s first request could not have been given. The burden was upon the plaintiff to prove his case, including proof of the validity of the assignment to Daniel C. Fletcher. This was a question for the jury upon all the evidence, including the reasonable inferences to be drawn therefrom. 3. The plaintiff’s third request was rightly refused. Whether the defendant owed the amount of the judgment was a question involved in the case, but it was not the only one. It was for the jury also to determine whether the amount was due to Daniel C. Fletcher as assignee. 4. We are of opinion that the record in the equity suit should have been admitted in evidence, and that because of its exclusion by the judge the exceptions must be sustained. The bill in that suit was brought by this defendant against Daniel C. Fletcher and H. Theodore Fletcher, and alleged in substance that the “ consideration for said assignment was paid for by H. Theodore Fletcher by his own money; and that H. Theodore Fletcher is the equitable owner of said judgment.” The suit in equity was between the same parties upon the same issue as that raised in this case. The finding of the judge in that suit, which was in effect that Daniel C. Fletcher purchased the judgment' with his own money and that H. Theodore Fletcher was not the equitable owner of the judgment, together with the entry of a final decree dismissing the bill, from which no appeal was taken, is conclusive and binding upon the parties in this action. The issue decided in the equity suit was identical with that raised by the amended answer in the case at bar. Saco Brick Co. v. J. P. Eustis Manuf. Co. 207 Mass. 312, 315, 316. Newburyport Institution for Savings v. Puffer, 201 Mass. 41. Corbett v. Craven, 193 Mass. 30. Nor was the record in the suit in equity incompetent upon the ground that it was not seasonably offered. It was a part of the plaintiff’s proof and was first offered by him as a part of his case “at the close of the cross-examination of H. Theodore Fletcher, who was the sole witness for the plaintiff.” The record shows that the plaintiff renewed his offer dining the cross-examination of the defendant, and the evidence was again [248] excluded. The evidence was competent and was seasonably offered. Because of its exclusion the entry must be Exceptions sustained.