Beaman v. Gerrish, 235 Mass. 79

235 Mass. 79 | Mass. | 1920

Rugg, C. J.

Four of these actions are in contract to recover instalments alleged to be due upon two promissory notes payable to the order of Beaman, signed by Gerrish as maker and Burke as indorser, these two being defendants in each of these actions. The fifth action, as it finally went to the jury upon count one alone of the declaration, is in tort by Burke against Beaman alleging the purchase from him by Burke of fifty shares of stock in a corporation, induced by Beaman’s deceit in misrepresenting the assets and liabilities of the corporation and other facts material to the value of the stock.

1. No question now is made respecting the signatures or protest of the notes. It is contended that three of the actions on the notes are prematurely brought. That contention rests on the form of the notes. One note, typical of the others, is of the tenor following, as far as concerns this point, “Four years after date I promise to pay to the order of Nathaniel P. Beaman Two Thousand and no/100 Dollars. Payable after three years, at the rate of $500.00 quarterly, with interest at 6%.” Although not phrased with elegance, the intent of the parties is plain enough from the terms of this contract. As matter of construction these words mean that beginning with the expiration of three years from the date of the note, the sum of $500 is to be paid quarter yearly in such way that the entire principal will be paid at the expiration of four years from date. If it stood alone, the first sentence would be a clear and single promise to pay on four years’ time. That sentence, however, does not stand alone. It is modified by the second sentence, which explains and qualifies the simplicity of the earlier sentence by requiring the payment to be made in equal quarterly instalments during the final year before the ultimate maturity of the balance. The word “payable” in negotiable instruments, commonly implies imperative obligation on the part of the maker unless accompanied by additional words expressive of option vested in the maker. As thus construed, with rational effect given to all the words used, the two sentences, which together express the promise, áre not mutually repugnant but are harmonious and consistent. Ewer v. Myrich, 1 Cush. 16.

2. The controversy centres about the purchase by Burke in 1914 of fifty shares of the preferred stock of the Parsons Manufacturing Company organized under Massachusetts laws in 1898. The entire capital stock par value $10,000 was paid in originally by a brother of Beaman, and was in 1900 purchased by him of his brother’s executors. Within a short time thereafter, Gerrish purchased $1,000 of par value of the common stock. For a time a bookkeeper, Crosby, owned $2,000 par value of the stock, which later was acquired by Gerrish. One share was held by William S. Beaman, another brother of Nathaniel P. Beaman. From 1902 to 1914 the directors of the corporations were the two Beamans and Gerrish. The testimony of Nathaniel P. Beaman, which was not contradicted and upon which Burke relies as showing that the stock purchased by him was not validly issued, was as follows: “that at the end of each financial year of the corporation the net profits made by the company were ascertained in the usual way by agreement of Nathaniel P. Beaman, Gerrish and Crosby, and the proportion that Beaman and Gerrish should receive was agreed upon and transferred on the books to them; this proportion was not strictly in accordance with the amount of stock held by each; that Gerrish received at first one third of the net profits and afterwards one half of the net profits, and Beaman received the balance; that from 1900 to and including 1914 substantial profits were made every year which were divided as above set forth; that no preferred stock was issued until the fall of 1909; that at that time owing to the fact that he had withdrawn only a portion of his share of the profits credited to him upon the company’s books, there was due to him from the company a sum in excess of $24,000; that as he was about to undergo a major operation which might prove fatal, Gerrish suggested to him that preferred stock to the amount of $20,000 should be issued by the company, and accordingly at a meeting duly held, at which all of the stockholders of the company were represented, it was voted to issue preferred stock to the amount of $20,000 to him; that it was paid for by him by deducting the sum of $20,000 from the amount due to him from the company, leaving a balance due on his account of something over $4,000; that this arrangement was assented to by all of the stockholders and all of the directors.”

The preferred stock issued to Nathaniel P. Beaman under these circumstances was validly issued. If the proportion of the profits credited to Nathaniel P. Beaman on the books of the corporation be treated as dividends not collected but left with the company, the one who chiefly was harmed by this was Beaman, because he owned all the stock of the corporation not owned by Gerrish except the single share held in the name of his brother, and a larger amount was credited to Gerrish than he would have been entitled to as dividends upon his stock and a correspondingly less amount to Nathaniel P. Beaman. If it be treated as payment of salary, no salary or payment in way of compensation for services rendered by Nathaniel P. Beaman having been made although he was at all times the manager of the business, that also was a matter about which he and Gerrish were mainly concerned. The entire business of the corporation for a long series of years was conducted by Nathaniel P. Beaman and Gerrish. That was the usual course of conduct of the affairs of the corporation. They constituted a majority of the board of directors and during most of the period held all the stock with the exception of a single share, the beneficial interest of which apparently belonged to Nathaniel P. Beaman although held by his brother. Even if owned absolutely by the brother, no different conclusion would be reached. That single stockholder seemingly never has complained. All this matter of credit to Beaman was before the stockholders and directors at the meetings of 1909 and was assented to by them. It was in substance and effect approved. Nothing appears to have been concealed or juggled. Fair dealing manifestly required that either by way of dividends on his stock or of compensation for valuable services rendered there was obligation from the corporation to Beaman. There is no suggestion and no foundation for the inference that the amount credited to him on the books of the corporation was excessive or anything more than justly was due him. The precise form which the transactions took is not of much consequence in view of the substantial ratification and approval of the whole matter, both by all the stockholders and directors at meetings duly held, long before Burke had any relation to the corporation. In the light of all these circumstances it cannot be said that the preferred stock issued was not valid. Lester v. Webb, 1 Allen, 34. Sherman v. Fitch, 98 Mass. 59, 64. Produce Exchange Trust Co. v. Bieberbach,176 Mass. 577, 582. North Anson Lumber Co. v. Smith, 209 Mass. 333. Albiani v. Evening Traveler Co. 220 Mass. 20, 25.

3. An effort is made to hold Nathaniel P. Beaman responsible for alleged false representations contained in the annual certificates of condition signed by him as one of the directors of the corporation and filed with the commissioner of corporations under St. 1903, c. 437, §§ 45, 46. Even it be assumed that there was evidence tending to show such false statements, there is nothing to indicate that they were signed by Beaman with any fraudulent purpose. There is in the record no foundation for the inference that the statements if false were signed by Beaman with knowledge of their falsity, or without belief in their truth, or in reckless carelessness whether true or false. He had no relations with Burke and the latter testified that, although he had seen Beaman, they had no conversation. Manifestly no representations were made to Burke in the ordinary sense, and Beaman had no purpose or intention that Burke should rely upon the statements in the returns. Therefore, he cannot be held personally °under the circumstances here disclosed. Nash v. Minnesota Title Ins. & Trust Co. 163 Mass. 574, 578. Harvey-Watts Co. v. Worcester Umbrella Co. 193 Mass. 138, 146. Derry v. Peek, 14 App. Cas. 337, 374, 375. The case at" bar is distinguishable from Bates v. Cashman, 230 Mass. 167, and cases of that class, where a positive statement of fact is made as of one’s own knowledge when there is no such knowledge, which is the equivalent of reckless disregard of the truth.

There is strong intimation if not a precise declaration to the effect that an action of deceit in favor of one of the general public does not lie against an officer of a domestic corporation for false statements contained in such certificates as those here in evidence, in the absence of express statutory provision to that end, in Hunnewell v. Duxbury, 154 Mass. 286, 288. See Cheney v. Dickinson, 96 C. C. A. 314; 172 Fed. Rep. 109. Compare Ver Wys v. Vander Mey, 206 Mich. 499.

It is a quite different matter to hold the corporation itself bound or affected by such returns, Steel v. Webster, 188 Mass. 478, 480, Brackett v. Commonwealth, 223 Mass. 119, 127, or to hold directors to a liability specifically imposed by statute based on falsify in the return, Felker v. Standard Yarn Co. 148 Mass. 226, or when representations are made to a commercial agency or otherwise for the express purpose of securing credit, Davis v. Louisville Trust Co. 104 C. C. A. 24; 181 Fed. Rep. 10, Eaton, Cole & Burnham Co. v. Avery, 83 N. Y. 31, 34, or to hold promoters for false representations in a prospectus, Peek v. Gurney, L. R. 6 H. L. 377.

It is not necessary to consider what liability there may be, if any, where the connection between the representation and the person relying upon it is closer than here disclosed, or where the purpose of the person making the statement is fraudulent. The decisions of courts of other States, upon which reliance is placed by Burke, are founded upon different statutes or upon other principles not prevailing here and need not be reviewed one by one.

4. The inquiry of the expert witness, as to the reasonable minimum compensation for the executive officers of the Parsons Manufacturing Company during the period which he examined, rightly was excluded. It does not appear that he was qualified to testify to the point or that his examination of the books covered time sufficient to make his evidence pertinent. No offer of proof was made. The record does not disclose grounds to which such testimony would have been relevant.

It follows from what has been said that all the requests for rulings, which need not be recited in detail, rightly were denied.

Exceptions overruled.