Light v. Gray & Davis, Inc.

MORTON, District Judge. A previous action was brought against this defendant by the Gray Engine Starter Company, as assignee of the same contract which forms the basis of the declaration in this action. The defendant demurred upon the grounds, inter alia, that said contract was not assignable, and that action could not properly be brought upon it by the assignee; and it was so held. Gray Engine Starter Co. v. Gray & Davis, Inc. (Mass. District Court, No. 555, Law) 224 Fed. 723, opinion December 2, 1914. Thereafter this action was brought by writ dated December 28, 1914, by the original parties to the contract. The present declaration contains two counts, in one of which the plantiffs claim to recover royalties in their own right and in the other for the benefit of the Gray Engine Starter Company. The defendant has demurred upon several grounds, some of which present the same questions which were considered and decided against the defendant in the previous action. The principal new ground of demurrer is that the counts are improperly joined under chapter 173, § 16, cl. 1, of the Revised Laws of Massachusetts, in that in one count the plaintiffs sue in a representative capacity, and in the other in their own right, and that the declaration contains no statement that both counts are for the same cause of action. Suits are brought by one person “for the benefit of another” when the right of action is vested in the first and the right to damages in the second, but the latter is prevented by some rule of law from suing for them in his own name. An assigned contract is the commonest basis for such suits, although it is not tlie only one. The words quoted bring into the damages the loss sustained by the person beneficially interested. Without them it is possible that only nominal damages would be awarded. Grime v. Borden, 166 Mass. 198, 44 N. E. 216. It does not seem to me that the plaintiff in such an action is suing in a “repre [632] sentative capacity” as those words are used in this statute. The objection is a purely technical one, and I am not disposed to extend the statute beyond its necessary meaning. I think the declaration should allege that both counts are for the same cause of action, if, as I understand, that is the fact. The plaintiffs may amend by inserting such an allegation, if so advised. In view of the former opinion, the other grounds of demurrer do not require discussion. In addition to the cases there cited, see Central Brass Stamping Co. v. Stuber, 220 Fed. 909, 136 C. C. A. 475; Allen v. Chicago Pneumatic Tube Co., 205 Mass. 569, 575, 91 N. E. 887; New York Bank Note Co. v. Kidder Press Mfg. Co., 192 Mass. 391, 404, 405, 78 N. E. 463. Demurrer overruled.