Inhabitants of New Braintree v. Constant Southworth , 70 Mass. 304 ( 1855 )

Shaw, C. J.

The court are of opinion that the demurrer is well taken in the present case, and must be sustained. It is a suit commenced under the new practice, (St. 1853, c. 371,) in which the plaintiffs declare as in an action of contract, to recover damages for the alleged breach of an executory agreement, and in terms broad enough to recover, as on an implied contract, for money had and received; and also praying relief, as in a suit in equity.

1. As a suit in equity, we think it cannot be sustained, because the town of Hardwick is not made a party, either plaintiff or defendant ; whereas it appears by the declaration that they were a party to the contract, and are therefore prima facie a party to the suit, seeking a remedy in which both have an interest, unless they have severed by making a separate settlement with the defendant. The plaintiffs, instead of averring that .fact as an excuse for not making them a party, deny the fact of such separate settlement, and state that the defendant’s representation to that effect was untrue, and was one of the false representations by which the plaintiffs were deceived.

2. Nor would it be of any avail to the plaintiffs to amend and make the town of Hardwick a party, because the case does not disclose more than two parties having distinct rights and interests which cannot be justly and definitively decided and adjusted in one action at common law. So far as it seeks to recover damages for the nonperformance of the defendant’s contract to build and complete the bridge within a time fixed, and of good and durable materials, the interests of the two towns— if the towns are bound by this contract, made in their behalf by the selectmen of each, of which we have no occasion to express any opinion—were the same, and an adequate and complete remedy might be obtained in one action at law. So far as it seeks to recover back money paid by the plaintiff town to the defendant under a false representation, Hardwick has no interest adverse to the plaintiffs, and no interest whatever.

3. As an action at law, to recover back money paid separately by the plaintiff town to the defendant, under a false representation, this court have no original jurisdiction, the amount so sought to be recovered being under $300, and therefore not sufficient to give this court concurrent jurisdiction with the court of common pleas, under the statute. St. 1840, c. 87, § 3.

Demurrer sustained.