Opinion
December 15, 1899.
May 15, 1900.
Present: HOLMES, C.J., MORTON, BARKER, HAMMOND, LORING, JJ.
Part owners of a vessel brought an action at law against a ship's husband to recover their share of a dividend. The defendant was the survivor of two partners who had acted as ship's husbands of a barque, which had been on voyages resulting in a loss, six sixty-fourths of which was due from the plaintiffs as owners of that undivided share in the vessel. Held, that the defendant's claim against the plaintiffs could not be availed of in set-off.
If, when an action is brought to collect a debt due from the defendant, there is pending in the same court a bill in equity brought by the defendant against the plaintiff to enforce contribution, the defendant should move to have the action at law continued until the bill in equity reaches a decree, and then move to have the judgment and decree set off one against the other and execution issued or a final decree entered for the balance due him or his adversary, as the case may be.
CONTRACT, upon an account annexed. Trial in the Superior Court, before Sheldon, J., who ruled that the matter offered by the defendant Smith could not be availed of in set-off, and directed the jury to return a verdict for the plaintiffs. The defendant alleged exceptions, which appear in the opinion.
A.C. Burnham, for the defendant.
E. Lowe, (W.H. Baker with him,) for the plaintiffs.
The only question presented in this case is the right of the defendant Smith, in an action to recover from him a liquidated sum, to set off the following claim which he has against the plaintiffs.
The defendant was the survivor of two partners, who had acted as ship's husband of a barque. The barque had been on several foreign voyages, resulting in a loss of $8,707.41, six sixty-fourths of which was due from the plaintiffs as owners of that undivided share in the vessel. When the declaration in set-off was filed, the bill in the case of Smith v. Butler, ante, 38, was pending, and the plaintiffs in this action were defendants in that suit.
The Superior Court ruled that the defendant's claim against the plaintiffs was not a matter which could be availed of in set-off. That ruling was right.
The claim which it is sought to set off is a claim for contribution, which can only be enforced in a bill in equity brought by the ship's husband, in which those liable to contribute are made parties defendant, (Smith v. Butler, 164 Mass. 37,) and therefore cannot be made the subject of a declaration in set-off in an action at law brought by one part owner to collect an outside debt due from the ship's husband. Since there was a bill to enforce contribution pending in the same court when the plaintiffs brought their action to collect the debt due from the defendant, the defendant's remedy was plain: he should have moved to have the action at law to recover the outside debt continued until the bill in equity reached a decree, and then have made a motion to have the judgment and decree set off one against the other and execution issued, or a final decree entered for the balance due him or his adversary, as the case might be. The power of the court to order a continuance in case of two actions at law, and to direct execution to issue for the balance between the two judgments, has been practised upon for many years; Rider v. Ocean Ins. Co. 20 Pick. 259; Ames v. Bates, 119 Mass. 397, 398, 399; see also Pub. Sts. c. 171, §§ 25, 26, 27; and on the same principle the Superior Court could have set off the judgment and decree one against the other, and issued execution or entered a decree for the balance.
Exceptions overruled.