Dunn v. Holladay

372 N.E.2d 286, 6 Mass. App. Ct. 842

• Court: Massachusetts Appeals Court
• Decided: February 2, 1978
• Status: Published

Opinion

1. The first count of the complaint should not have been dismissed as against the defendant National Life Insurance Company (National), because the plaintiff would be entitled to damages against that defendant if he should prove, pursuant to paragraph 1.6 of the count, that Holladay, acting as agent for National, induced annuitants to replace annuity contracts generated by the plaintiff with new ones for the purpose of causing the plaintiff to lose "persistency” commissions and service fees on the replaced contracts. Compare Druker v. Roland Wm. Jutras Associates, Inc., 370 Mass. 383, 385 (1976); Fortune v. National Cash Register Co., 373 Mass. 96, 103-104 (1977). 2. We agree with the conclusion reached by the judge that the assignment of the plaintiff’s future commissions was not subject to the restrictions imposed by G. L. c. 154, § 3, on assignments of "future wages” (although it may fall within the restrictions of § 6 as an assignment of "earnings,” as to which see Jenks v. Dyer, 102 Mass. 235 [1869]; Kendall v. Kingsley, 120 Mass. 94 [1876]; Jason v. Antone, 131 Mass. 534 [1881]; compare Chester v. McDonald, 185 Mass. 54 [1904], and In re Nance, 556 F.2d 602 [1st Cir. 1977], a point we need not decide). To the same effect, see Union Life Ins. Co. v. Perkins, 257 F. Supp. 154, 158 ,(W.D. Ark. 1966); Crepeau v. Renewal Guar. Corp., 29 Colo. App. 23, 27 (1970); Fitch v. Pacific Fid. Life Ins. Co., 54 Cal. App. 3d 140, 145-148 (1975). The arguably contrary results reached in First Natl. Bank v. Hellen, 392 F.2d 58 (9th Cir. 1968), and Laird v. Carton, 196 N.Y. 169, 174-175 (1909), are based on statutory language clearly distinguishable from ours. It follows that the motion of both defendants to dismiss the fourth count of the complaint was correctly allowed. The judgment is affirmed as to count 4 and reversed as to count 1.

So ordered.