Conant v. Boston Chamber of Commerce

87 N.E. 906, 201 Mass. 479, 1909 Mass. LEXIS 768

• Court: Massachusetts Supreme Judicial Court
• Decided: March 29, 1909
• Status: Published

Opinion

Braley, J.

IE under the decision in Foote v. Gibbs, 1 Gray, 412, 413, a decree dismissing the bill is a bar to further prosecution between the parties or their privies of the matters shown by the pleadings to have been in issue, a dismissal without prejudice or for want of prosecution operates only as a nonsuit at law, which leaves the plaintiff at liberty to begin over if so advised. Lakin v. Lawrence, 195 Mass. 27, 29, and cases cited. The pleas in bar, therefore, were rightly overruled, and, the plaintiffs’ debt having been established, the only question for decision is whether the funds held by the defendant corporation can be applied in payment.

In the by-laws of the defendant corporation it is provided, that upon the death of a participating member an assessment shall be levied upon the survivors of the class to raise a “ gratuity fund,” for the benefit of his family, but not to exceed a fixed sum. If these provisions for the families of deceased members are further referred to as a gift or gratuity, which a member cannot assign, or by anticipation charge with the payment of debts, upon his death no discretionary power is vested in the corporation to withhold the fund from those who are to take it, for, when raised, its payment is unconditional. Evans v. Wall, 159 Mass. 164, 169. The debtors as the sons of a deceased member are the sole surviving beneficiaries, and the money having been obtained and having become payable, they then had a vested equitable right to possession, which in equity can be reached by the plaintiffs in satisfaction of their debt. R. L. c. 159, § 3, cl. 7. Wilson v. Martin- Wilson Automatic Fire Alarm Co. 151 Mass. 515, 518. Cole v. Bates, 186 Mass. 584.

Decree affirmed.