Burdo v. Tarky ( 1943 )

Qua, J.

This is an action of contract, originally brought by Burdo and another (since deceased) in a form appropriate to an action in their individual capacities, for a balance due to the plaintiffs for building a hunting lodge for the defendant at Salisbury in the State of Vermont. After a finding for the surviving plaintiff Burdo, hereinafter called the plaintiff, the defendant insists that there was error in two respects, (1) in allowing an amendment designating the plaintiff as surviving trustee of “Burdo & Boyd Realty Trust” and (2) in finding for the plaintiff after the amendment was allowed, since, as the defendant contends, there was no evidence that the plaintiff originally contracted in a trust capacity.

There was no error in either respect.

The amendment was unnecessary, but it was permissible, and, so far as the defendant was concerned, it worked no change in the nature of the action and did him no harm. A trustee, as the owner of a legal or equitable cause of action which, in fact, he holds in trust for another, can sue a third party upon it without alleging himself to be a trustee. If, however, a plaintiff does allege himself to be a trustee, the allegation is mere surplusage and need not be proved any more than any other unnecessary allegation need be proved. The defendant is not concerned with the question whether or not the plaintiff is obligated to account for the proceeds of the action to some cestui que trust. Hawkins v. County Commissioners of Berkshire, 2 Allen, 254, 258. Bromley v. Mitchell, 155 Mass. 509, 512. Hull v. Newhall, 244 Mass. 207, 209. Gerber v. Berstein, 295 Mass. 132, 136. Boston v. Dolan, 298 Mass. 346, 352-353, and cases cited. Am. Law Inst. Restatement: Trusts, § 280, comment h. On the subject as a whole see Scott on Trusts, §§ 280-280.6. As to executors or administrators, compare Eaton v. Walker, 244 Mass. 23. It follows that, whether or not the plaintiff was a trustee, he could recover upon proof of the contract and of its breach by the defendant.

The defendant has a finding against the plaintiff, not designated as trustee, in a cross action and fears that he will be unable to set off his execution against that which the plaintiff will obtain against him, if the plaintiff is allowed to recover with the designation of trustee in this action. See G. L. (Ter. Ed.) c. 235, § 27; Odd Fellows Hall Association v. McAllister, 153 Mass. 292, 297. But whether or not Burdo was, in fact, acting in the same capacity in respect to both actions, the exceptions now before us present no question as to the set-off of executions.

Exceptions overruled.