276 Mass. 119 | Mass. | 1931
This action to recover for breach of an agreement of indemnity was tried before a jury in the Superior Court. The jury found for the plaintiff in the sum of $1,000, the amount claimed in the declaration, with interest thereon from August 15,1929, which was the date of the payment by the plaintiff, as surety, of the penal sum of the bond. The agreement of indemnity was executed and delivered by J. M. Mann, Inc. to the plaintiff. The case is before this court on the defendant’s exception to the admission of certain evidence, to the direction by the trial judge that if certain questions propounded to the jury were answered in the affirmative a verdict should be returned for the plaintiff, and to portions of the charge.
At the time the cause of action arose., the defendant, 14 Canal Street, Inc., a Massachusetts corporation, was named J. M. Mann, Inc. On or about September 22, 1923, J. M. Mann, its treasurer, Benjamin A. Elf man, its president, and Lionel Fontaine associated and formed a New Hampshire corporation by the name of Fontaine Furniture Company with Fontaine as president, Mann as treasurer and Elfman as assistant treasurer. In accordance with a vote passed at the first meeting of the incorporators, two hundred fifty shares of stock of the corporation were issued to J. M. Mann, Inc., in consideration of the transfer by it to the furniture company of the assets of a corporation known as Lionel Fontaine, Inc. which had been sold in bankruptcy proceedings in August, 1923, to J. M. Mann, Inc. The two hundred fifty shares of stock so issued constituted the entire outstanding stock of the furniture company.
By a writ dated July 7, 1926, one Harry Novak brought an action against the furniture company, in the Superior Court for Hillsborough County, New Hampshire, and attached as the property of the defendant in that action a motor truck which had been used in the business of the furniture company and had been purchased in exchange for a truck which was a part of the assets transferred by J. M. Mann, Inc., to the furniture company. J. M. Mann, Inc., was in the business of dealing in furniture, carpets, rugs, and other merchandise. There was evidence from which it could
The trial judge submitted to the jury three questions as follows: (1) “was there a community of business interest between the Fontaine Furniture Company and the J. M.
The defendant excepted to the refusal of the judge to limit the admission of the application for a bond and agreement of indemnity to the second and third pages thereof. The application and agreement are contained in a single document which was properly admitted in its entirety.
One Feeney, a witness called by the plaintiff, testified that she was employed in the office of general insurance agents and that it was a part of her duty to receive applications for bonds to be executed by the plaintiff. She was asked if she looked up the rating of the Fontaine Furniture Company and replied that she did. She was then asked what she found, and answered, subject to the defendant’s exception, that she could find no rating for that company in Dun’s rating book but did find a rating for J. M. Mann, Inc. As the Fontaine Furniture Company was wholly owned by J. M. Mann, Inc., and could have been found to have been a subsidiary of the latter, which did have a rating, J. M. Mann, Inc.’s guaranty of indemnity of the bond of its subsidiary was given for the protection of its property and was incidental to its business. There was no error in the admission of this evidence.
The defendant excepted to the admission of all the answers to interrogatories propounded by the plaintiff to Lionel Fontaine, save the first. The answers excepted to,
The judge admitted in evidence, subject to the defendant’s exception, a duly authenticated copy of the articles of organization and the annual returns of the Fontaine Furniture Company on file in the office of the Secretary of State of New Hampshire. The records so admitted showed that all the stock of the company was owned by J. M. Mann, Inc., and that Mann and Elf man, treasurer and president of J. M. Mann, Inc., were treasurer and assistant treasurer and two of the three directors of the Fontaine Furniture Company during all the time material in the case at bar. This exception is without merit. A certified copy of an amendment to the agreement of association changing the name of the corporation J. M. Mann, Inc., to 14 Canal Street, Inc. was admitted without objection.
At the close of the evidence the defendant filed a motion for a directed verdict, which was denied subject to its exception. The defendant also excepted to various portions of the instructions to the jury. The motion for a directed verdict and the exceptions to portions of the charge relate to the question whether the defence of ultra vires was open to the defendant in view of the entire evidence and the reasonable inferences to be drawn therefrom.
There was no error in the submission of the three questions to the jury. They were pertinent to the issue whether the defence of ultra vires constituted a defence to the action. The jury found in answer to the questions propounded that there was a community of interest between the Fontaine Furniture Company and the defendant; that the furniture company was a subsidiary of J. M. Mann, Inc.; and that J. M. Mann, Inc., received a benefit in money or property by its agreement to indemnify the plaintiff against loss by becoming surety on the bond. These findings were fully
No error of law is shown in the conduct of the trial.
Exceptions overruled.