Leavitt v. Dimond , 227 Mass. 216 ( 1917 )

Pierce, J.

This suit was brought under St. 1910, c. 531, § 2, to reach and apply certain shares of stock of the defendant corporation alleged to be held and owned by the individual defendant.

The debt sought to be established arose out of the alleged failure of the principal defendant to observe and perform the terms of a written instrument, signed by the principal defendant and dated July 24, 1912, whereby the defendant guaranteed to the plaintiff, Peter M. Leavitt, “the full, faithful and prompt payment of each and all weekly instalments set forth in a promissory note of even date made by John E. Brennen for $7500,” which note reads:

“Boston, Mass. July 24,1912.

“For value received, I promise to pay to Peter M. Leavitt or order Seventy-five Hundred Dollars, payable weekly in instalments of $36.06 per week, the first instalment to be made in one week from the date hereof, with interest weekly at the rate of 6% per annum.”

The bill in equity was brought on April 20, 1915, and alleged that instalments, payable according to the tenor of the note, to the amount of $1,081.80 with interest thereon were due and unpaid. An amendment to the. bill was allowed on December 21, 1915, to the effect that $1,226.04 more had become due and remained unpaid, or in all $2,307.84. *

On December 22,1915, the principal defendant filed his answer. He “admits that he was the owner of certain shares of the capital stock of the defendant corporation . . . but says that said shares are now of no value owing to the fact that the said corporation was duly adjudicated a bankrupt.”

On January 24, 1916, by a consent decree, "without prejudice to the defendant Dimond’s right to dismiss the bill for want of equity,” the bill was dismissed as against the defendant corporation.

On June 20, 1916, the defendant filed the following motion before taking any evidence: “Now comes the defendant . . . and moves that the above entitled action be dismissed upon the ground that there is no equitable jurisdiction.” This motion was denied and the defendant duly excepted.

It is the contention of the defendant that the court never acquired jurisdiction because the plaintiff offered no evidence that the stock had “a substantial market value” as alleged in the bill. No provision is expressed or implied in St. 1910, c. 531, § 2, to limit .the right of creditors to seize and apply only stock of substantial value or of substantial market value. The allegation was surplusage and need not be proven. In his answer the defendant admits that he was the holder of stock in the defendant corporation at the time of the filing of the bill.' This fact, together with the service of process, established jurisdiction in the court which was not lost when the bill was dismissed against the defendant corporation on the ground that the stock became worthless in consequence of the bankruptcy of the defendant corporation. Campbell & Zell Co. v. Barr Pumping Engine Co. 182 Mass. 304, 306. Rosen v. Mayer, 224 Mass. 494.

The amendment to the bill to include items of instalments accruing after the filing of the bill, was correct in procedure and the allowance of the items in accord with equity practice. Perry v. Pye, 215 Mass. 403. Collins v. Snow, 218 Mass. 542, 545.

Exceptions overruled.