Cosmopolitan Trust Co. v. Golub

Braley, J. The defendant Golub did not appear or answer, and the interlocutory decree taking the bill for confessed as to him must stand. A conclusion of facts properly pleaded requires no proof, and a decree pro confessa means that the statements of the bill are admitted. Thomson v. Wooster, 114 U. S. 104. The remaining defendant, the West End Credit Union, admits the allegations of the first paragraph of the bill, that the commissioner of banks on September 25, 1920, took and has remained in possession of the business and affairs of the company for purposes of liquidation as provided in G. L. c. 167. It also admits subject to two exceptions, the allegations of paragraph two, that on September 13, 1920, Golub borrowed from the plaintiff trust company $4,900 giving therefor his promissory note secured by collateral, described in the note as a book of five thousand shares of the capital stock of the West End Credit Union of the par value of $5 a share. And, payment having been long overdue, the plaintiff prays to have its debt established and the collateral applied in payment. The first exception is that the shares number only one thousand of the total par value of $5,000. This exception [578] is immaterial. The identity of the collateral described is not controverted. Raynes v. Sharpe, 238 Mass. 20. The other exception in substance is that, before filing the bill, the commissioner having sold Book No. 188, issued in the name of Golub, together with the debt for which it stood, the plaintiff had no enforceable interest in the debt or the collateral. But the only evidence to support this defence was a notice from the alleged purchaser to the defendant Union, that such sale had been made. The judge was not bound to accept the notice as conclusive and his general finding, after referring to the contention of the Union, establishing the debt as a debt due to the plaintiff shows no error of law. Boston Supply Co. v. Rubin, 214 Mass. 217. The defence to the original bill as well as the affirmative relief prayed in the cross bill rests on the contentions that the transaction was illegal, and that the plaintiff had failed to prove ownership of the stock, and that the defendant is entitled to a set-off. We discover no error of law in the rulings on the exclusion of evidence, and the findings of the presiding judge are not to be set aside unless plainly wrong. They rest on the partially agreed statement of facts on which the plaintiff submitted the case, and the testimony introduced by the defendant. The statements of fact as found, which are supported by the record, disclose no fraud or conspiracy invalidating the lending of the money and taking of security. The loan was to Golub personally and the pledge was of his own deposit book as representing the funds held in his name by the Union. The Union was neither directly nor indirectly a party to the transaction. It borrowed no money. It gave no security, and G. L. c. 171, that it could not borrow money without permission of the commissioner, was not violated. The transaction also did not infringe the by-law of the Union, that no money shall be received from, or paid to a member unless the pass book is presented. In this connection the agreed facts state that on December 27, 1920, Golub had on deposit on the books of the Union $5,000 represented by the pass book, and that on June 19, 1922, and June 22, 1922, the date of filing the bill he had a like sum [579] on deposit which included accrued dividends, and his account also showed that the Union had lent him $300. The charge of conspiracy between Golub and the trust company’s president in obtaining the loan, and that therefore the plaintiff does not come into court with clean hands, is not only negatived by the findings of the judge, but is wholly unsupported by the record. The Union, when the trust company was closed, had on deposit in its commercial department $5,539.66. It is contended that this amount should be allowed in set-off to the plaintiff’s claim. But the Union is a stranger to the loan to Golub. There is no mutuality of obligation between it and the plaintiff. G. L. c. 232, § 1. St. Louis Perpetual Ins. Co. v. Homer, 9 Met. 39. The doctrine of equitable set-off is equally unfounded. Perry v. Pye, 215 Mass. 403. Cosmopolitan Trust Co. v. Wasserman, 251 Mass. 514. The judge was not required to find as requested, and his general finding for the plaintiff was in effect, and is to be treated as, a denial of the Union’s request for rulings, which could not have been given for reasons previously stated. The defendant Golub as well as the Union appealed from the final decree on the original bill. While Golub had a right to be heard on the form of the decree, and to appeal from it, Blanchard v. Cooke, 144 Mass. 207, 218, neither defendant, if the plaintiff prevails, contests the form or substance of the decree, and it is affirmed with costs. It follows that the decree dismissing the cross bill also should be affirmed. Ordered accordingly.