Iron Trap Rock Co. v. Follett

5 R.I. Dec. 115

• Court: Superior Court of Rhode Island
• Decided: May 8, 1929
• Docket: No. 79235
• Status: Published

Opinion

BLODGETT, P. J.

Heard upon demurrer of plaintiff to defendant’s third plea.

The defendant in this ease has filed a plea in set-off marked “Defendant’s Third Plea.” To this plaintiff demurs on seventeen grounds.

The causes of demurrer numbered from one to four inclusive are overruled.

Causes numbered 5 to 7 inclusive set forth that the demands set out in said fourth plea did not belong to defendant in his own right and that action could not be brought upon the same in his own name as city treasurer, but in the name of the City of Woonsocket as provided by statute.

This would, in effect, mean that, although a suit in behalf of the city must be brought in the name of the city, and a suit against the city must be brought against the city treasurer, yet a judgment against the Iron Trap Rock Co., obtained by the city could not be set off against a judgment against the city obtained by the Iron Trap Rock Co.

For plaintiff: Edwards & Angelí, Eugene E. Tal'bert. •For defendant: Ovila Lambert.

Demurrers to third plea set forth in causes numbered 5 to 7 inclusive overruled.

Richmond, vs. Kettelle, 42 R. I. 205.

The sole question remaining is this: Could the municipal corporation as plaintiff, in an action against the Iron Trap Rock Co. based upon assumpsit and the common counts for money had and received, recover judgment against such defendant for such overpayments as said city was able to prove?

The Court is of the opinion that such action could be brought.

The demurrers are therefore overruled.