Moore v. Spiegel , 143 Mass. 413 ( 1887 )

Field, J.

If the pendency of another action for the same cause of action in another State can be pleaded at all, it can only be pleaded in abatement. The defendant did not plead this in abatement, but in bar, and the substance of his plea in bar would not have been a good plea in abatement. Besides, the exceptions do not show that the suit in New York was pending when this suit was brought. Newell v. Newton, 10 Pick. 470. Colt v. Partridge, 7 Met. 570. Merrill v. New England Ins. Co. 103 Mass. 245.

If the plaintiff had assigned his chose in action to Vanderveer, Vanderveer could sue in this Commonwealth only in the name of the plaintiff. The assignment was not a defence. If the defendant proved an assignment, and that the plaintiff had no beneficial interest in the cause of action, and that the bringing of the suit or its prosecution had not been authorized by the assignee, the action might have been dismissed on motion; but it is doubtful if these facts could be pleaded in bar, because they are not an answer to the action on its merits, although they show a reason why the plaintiff should not be permitted to prosecute the action. The evidence offered by the defendant which was rejected did not tend to prove all these facts. The evidence offered by the defendant which was admitted showed a reassignment from Vanderveer to the plaintiff made after the commencement of this suit. If the suit was begun by the plaintiff while the assignment was in force, and without the authority of the assignee, the assignee could subsequently ratify the bringing of the suit; and if he reassigned the chose in action to the plaintiff, the plaintiff could thereafter prosecute the suit for his own benefit. The defendant did not show that the suit was prosecuted at the trial by one who had no authority to prosecute it.

It is a sufficient answer to the defendant’s contention concerning estoppel, that the evidence, taken most favorably for him, does not tend to show that the representations that the whiskey belonged to Mrs. Reilly were made by the plaintiff with the intention of inducing the defendant to give credit to Mrs. Reilly, or to attach the whiskey as her property. The attachment apparently was something entirely foreign from anything which the plaintiff contemplated, or which the defendant could reasonably suppose he had in mind; and there is no evidence that the defendant gave Mrs. Reilly credit on the faith of these representations. The instruction requested omits these elements of estoppel. Freeman v. Cooke, 2 Exch. 654. Zuchtmann v. Roberts, 109 Mass. 53. Carr v. London & North Western Railway, L. R. 10 C. P. 307, 316. Brant v. Virginia Coal & Iron Co. 93 U. S. 326.

Exceptions overruled.