Armstrong Knitting Mills v. Oakes

Carroll, J. By an instrument under seal, dated January 2, 1912, Owen F. Oakes and Margaret L. Oakes sold to the plaintiff certain machinery and personal property connected with the business carried on by the sellers under the name of Oakes Knitting Mills Company. This action is in contract against Owen F. and Margaret L. Oakes, the declaration alleging, that the defendants have interfered with the good will of the business sold the plaintiff; that they have sought directly and indirectly to injure the business of the plaintiff, and have directly and indirectly entered the business of manufacturing and selling sweaters and other woolen' goods, in competition with the plaintiff, to its damage. The case was tried before an auditor, who filed a report. While the action was pending, Margaret L. Oakes died on December 12; 1921. Owen F. Oakes was appointed her executor. Thereafter the plaintiff filed a motion suggesting [400] the death of Margaret L. Oakes and the appointment of her executor, and asking that a citation issue to the executor to appear and take upon himself the defence of the action. The executor appeared specially and moved that the process be dismissed, that he be excused from further answering, and that the action be dismissed as to Margaret L. Oakes or her estate. In the Superior Court this motion of the executor was allowed and the case reported to this court. The contract of Owen F. Oakes and Margaret L. Oakes was a joint contract. Bartlett v. Robbins, 5 Met. 184. New Haven & Northampton Co. v. Hayden, 119 Mass. 361. Meyer v. Estes, 164 Mass. 457. Wood v. Farmer, 200 Mass. 209, 213. It contains no language indicating the severance of the parties’ liability. The declaration is based on the written contract alleging that 'certain property and the good will of the business carried on by the defendants were sold to the plaintiff by a written agreement; and that the defendants thereby impliedly covenanted with the plaintiff that they would not interfere with the enjoyment of what they sold to the plaintiff under said written instrument. There is nothing in Old Corner Book Store v. Upham, 194 Mass. 101, and the other cases cited by the plaintiff, showing that the contract in question was several, or joint and several. In the case at bar the contract was joint: the action could not proceed against the executor as well as against the surviving defendant. New Haven & Northampton Co. v. Hayden, supra. Lee v. Blodget, 214 Mass. 374. See Poland v. Otto, 243 Mass. 405, 408. By G. L. c. 228, § 7, it is expressly provided if any of the several plaintiffs or defendants in a personal action, the cause of which survives, dies before final judgment, the action may be prosecuted by the surviving plaintiff or against the surviving defendant, as the case may be. But the. survivor and the executor of the deceased contractor could not be held in a joint action. The ruling of the trial judge was right. It appears from the report that the case was heard before an auditor. It is stated in the plaintiff’s brief that the auditor found that Margaret L. Oakes violated her im [401] plied covenant of good will and that Owen F. Oakes did not, and assessed damages against her. If the plaintiff is allowed in the Superior Court within sixty days of the date of the rescript to amend its pleadings so as to proceed against the executor of Margaret L. Oakes, and the action is discontinued against Owen L. Oakes, the motion to dismiss the action against her estate is to be denied; Lee v. Blodget, 214 Mass. 374, American Surety Co. of New York v. Vinton, 224 Mass. 337, Poland v. Otto, supra, G. L. c. 197, § 8; otherwise, the motion to dismiss the action against her estate is allowed. So ordered.