Samuel Rosenblum v. W. H. Blodget Co‪.‬

RUGG, C. J. These two actions of contract were brought in a district court. The declaration in each case contained a count for goods sold and delivered and a count upon an accounting of the parties, and in one case there was a third count on an account annexed, each declaration stating that all counts were for one and the same cause of action. The original answer in each case was a general denial. It was later amended by setting up adjudication of the defendant as a bankrupt and praying for a continuance for the purpose of procuring and pleading its discharge. At the trial the allegations of the declarations were either proved or admitted. Requests of the defendant in substance for rulings that it was entitled as matter of law to continuance to enable it to procure and plead its discharge in bankruptcy, or continuance at least for twelve months after its adjudication, were denied; a finding was made for the plaintiff in each case. Questions of law raised by the requests for rulings were reported to the Appellate Division, which ordered that the report be dismissed in each case. Appeals by the defendant brought the cases here. When the cases were reached for argument in this court on September 22, 1930, counsel for the defendant stated that he was convinced on investigation that the rulings made by the trial Judge and the decision by the Appellate Division were right and he did not care to argue the cases on their merits. He presented a motion in each case in behalf of the defendant praying that it be allowed to amend its answer by substituting a new answer wherein it was pleaded that the claim declared on was provable under the Bankruptcy Act (11 USCA), that the defendant had been adjudicated a bankrupt subsequently to the bringing of the action, and that on September 19, 1930, a discharge in bankruptcy was granted to it and that such discharge, certified copy of which was annexed, was a bar to the action. The provisions of G. L. c. 231, § 125, are invoked in support of the allowance of these motions. That section confers upon this court in a case like the present 'all the powers of amendment of the court below.' Concerning this section it was said in Twombly v. Selectmen of Billerica, 262 Mass. 214, at page 216, 159 N.E. 630: 'This power will not be exerted save in instances where Justice seems to require it.' It is manifest that there was no ground in law for bringing to this court appeals from the decisions of the Appellate Division. The questions in each case raised by the report of the trial Judge had all been settled adversely to the position of the defendant by numerous decisions covering a considerable period of years. Rosenthal v. Nove, 175 Mass. 559, 56 N.E. 884, 78 Am. St. Rep. 512; Feigenspan v. McDonnell, 201 Mass. 341, 346, 87 N.E. 624; Rogers v. Abbot, 206 Mass. 270, 274, 92 N.E. 472, 138 Am. St. Rep. 394; Parker v. Murphy, 215 Mass. 72, 74, 102 N.E. 85; Berry Clothing Co. v. Shopnick, 249 Mass. 459, 463, 144 N.E. 392. Prosecution of those appeals was not justified. In these circumstances Justice does not demand the exertion at the solicitation of the appealing party of any judicial power of this court not required by law. The mere presence of the cases in this court without any question of law to be decided does not warrant the interposition of its authority to allow amendments. The defendant must be left to seek whatever relief may be open to it in the trial court where the cases are pending. G. L. c. 231, § 109. The motion to amend the answer is denied in each case.