267 Mass. 402 | Mass. | 1929
These are cross actions of contract, tried together, arising out of alleged breaches of an agreement
On November 30, 1926, a new corporation was organized under the name "James G. Clark, Inc.” to carry on the business which had been conducted by the Corporation. On December 1, 1926, at a meeting of the board of directors of the Corporation, it was voted that the president, secretary and treasurer be authorized and directed to take all necessary steps for a dissolution of the Corporation in accordance with § 105 of the New York stock corporation law. On the same
On December 2, 1926, James G. Clark, treasurer of the Corporation, wrote the Bleachery that he had entered into an obligation to take over the lease held by the Corporation, and the telephones, and had personally obligated himself to the selling staff and employees of the office, and asked the Bleachery to sign an agreement enclosed which, if signed, would substitute James G. Clark, Inc. as the contracting party in the place of the Corporation. The proposed agreement was not executed. On December 29,1926, the Corporation sent a letter to one Flint, who on December 21, 1926, became the largest stockholder of the Bleachery, stating that it had been unable to get a decision of the question of continuing its representation as soliciting agent of the Bleachery, and asking that its resignation, effective as of December 31,1926, be accepted. By letter dated December 31,1926, it notified the Bleachery to the same effect and enclosed a copy of the letter of December 29 to Flint. On January 7, 1927, the certificate of dissolution of the Corporation was filed in the office of the Secretary of State of New York.
The action against the Bleachery was brought first. In it the Corporation seeks to recover (1) minimum guaranteed commissions of $833.33 for the month of December, 1926, with interest from January 1, 1927, the date of demand; (2) excess commissions of $277.08 earned by the Corporation for the month of November, 1926, payable December 15, 1926, with interest; and (3) excess commissions of $71.62 for the month of December, 1926, payable January 15, 1927, with interest. The verdict for the plaintiff would seem to
In the action against the Corporation the Bleachery sought to recover damages because of the defendant’s breach of contract in dissolving its corporate existence and resigning as soliciting agent. The answer in that case was a general denial and payment; and the defence was set up that if the corporate existence was dissolved and the defendant resigned as agent these things occurred after material breaches by the plaintiff, which entitled the defendant to treat the contract as wrongfully terminated. The defendant’s motion for a directed verdict, made at the close of the evidence, was granted subject to the plaintiff’s exception.
Evidence was introduced to prove that the total amount of the commissions due the corporation on sales during the month of November, 1926, was $1,110.41; that $833.33 had been paid thereon as minimum commission, leaving a balance of $277.08 for that month. The parties agreed that according to the contract the latter sum was payable December 15, 1926. The testimony also tended to prove that the total commissions due the Corporation for the month of December, 1926, amounted to $904.95, none of which had been paid. The guaranteed minimum commission due December 1,1926, for November was not paid until December 22, 1926.
The exception to the exclusion of the question asked in cross-examination of Clark, who in 1926 was treasurer of the
The Bleachery, in a series of exceptions, objected to the admission of evidence relating to the organization of the new corporation, to its carrying on at the same place with substantially the same employees and organization the business which had been carried on by the Corporation, and to the fact that there was correspondence with the Bleachery in respect to the business which the new corporation proposed to do. The testimony that the service offered to the Bleachery by the new corporation would be performed by the same employees who had been acting for the old Corporation was competent in mitigation of damages in the action brought by the Bleachery. The evidence tended to prove that the Bleachery could obtain from the new corporation substantially the same services for which it had contracted. Hall v. Paine, 224 Mass. 62, 65.
Exceptions were saved to the admission in evidence of certain statements made by one Walsh to the treasurer of the Corporation, of a letter from Walsh to the Corporation and a letter in reply dated respectively December 17 and December 20, 1926. There was evidence that, at the time the letters were written and the conversations occurred, Walsh was agent of the Bleachery, supervising details of manufacture, supervising and controlling the sales, and in general authorized to conduct the business. His title appeared as agent on the stationery of the Bleachery and he was described by one witness as manager of the works. He had been in the habit of deciding questions arising under the
The Bleachery’s exception to a question calling for Clark’s reasons for writing the letter of resignation in behalf of the Corporation, dated December 29, 1926, but to be effective December 31, 1926, must be overruled. Any fact known to the witness tending to show breaches of contract by the Bleachery before the letter was written was competent. Nash v. Minnesota Title Ins. & Trust Co. 163 Mass. 574. He was not precluded from putting in evidence reasons not stated in the letter. The objection that the question was too broad cannot be made for the first time in this court. Commonwealth v. Hogan, 11 Gray, 312, 313. Gagnon v. Sperry & Hutchinson Co. 206 Mass. 547, 557. The irresponsive part of the answer objected to in exception 16 seems to have been struck out. The exceptions numbered 17 and 18 relate to an answer in cross-examination not wholly responsive to the question put but, so far as appears, not objected to on that ground at the trial. The answer implied that Walsh, an officer of the Bleachery, gave the witness information as to terminating the contract. It appeared, however, by later answers, that no officer gave such information and that the witness knew Walsh was not an officer. Moreover, the objection that an answer is not responsive cannot be made for the first time in this court. Gagnon v.
The nineteenth and forty-fourth exceptions relate to reading into the record certain pencil memoranda from the ledger of the Corporation on the ground that they were not shown to have been entries in the usual course of business. The treasúrer read from an account book, and a copy of the account was later admitted without objection and marked as an exhibit. The witness testified that this exhibit contained all the payments received by the Corporation from the Bleachery. After a part of the items had been read to the jury the attention of the witness was directed to the pencil memoranda appearing on the same page of the ledger and on the exhibit. These entries were in the book when audited. Upon objection being made to the reading of the pencil memoranda, the judge said, in substance, that the exhibit was already in evidence and it is assumed that the items are entries in a book kept in the ordinary course of business. No objection having been made to the exhibit when admitted, there was no error in refusing to strike out the part of it in pencil. Matthews v. New York Central & Hudson River Railroad, 231 Mass. 10, 18.
The exceptions to testimony tending to prove that Flint gave directions to employees, which were obeyed, and that he also engaged in other activities in and about the factory must be overruled. This evidence was introduced to prove that Flint had authority to speak for the Bleachery. Testimony was introduced without objection to the effect that on December 21, 1926, a sale of a majority of the capital stock of the Bleachery was made to Flint, and that on the same date all the officers and directors resigned and others were elected to fill their places; that when representatives of the Corporation made an effort to get the treasurer of the Bleachery then in office to sign an agreement substituting the James G. Clark, Inc. for the Corporation as party to the contract, he said that one reason for not signing was that negotiations were pending for sale of stock and he wanted to leave the new management free to act in the matter; that he wanted to put the matter up to Flint as the largest stockholder before taking
The testimony of the witness Atwater to which exception was saved was substantially the same as other evidence in the case without objection, and, if it be assumed that he was not authorized to speak for the Bleachery, the rulings concerning the interrogatories to him do not disclose reversible error. "The defendant fails to show that it was prejudiced by the introduction of evidence, which it contended at one time was irrelevant and which afterwards when introduced in another form it did not oppose though covering the same subject.” Morrison v. Lawrence, 186 Mass. 456, 458.
The witness Walsh, having stated in cross-examination that he did not know before December 31 that the Corporation was going to resign, was asked whether he went to New York to meet customers because of the emergency caused by the termination of the agency of the corporation on December 31, and answered "Yes,” and added, "That termination was coming from the Waltham Bleachery, not from the ClarkBice Corporation.” He was then asked whether the Bleachery knew prior to December 31 that the Corporation was going to resign, and answered that it did not but that it knew the Bleachery was not going to continue. When in reply to later questions he testified that he did not mean that officers of the Bleachery knew that the Bleachery was not going to continue but that the owner of the plant had this knowledge, the Bleachery moved to strike out the testimony as to the
It was not disputed that by letter dated December 31, 1926, the Bleachery sent notice to its customers containing this statement. “Having terminated our connection with Clark-Rice Corporation, formerly Selling Agents for the Waltham Bleachery & Dye Works, the new management has adopted the policy of selling direct to the trade, rather than through selling agents.”
The judge ruled that the dissolution of the Corporation subsequent to December 31, 1926, would not excuse the Bleachery from payment of any balance of commission due December 15,1926, in respect to November, 1926, and added, in substance, the statement that the vote to dissolve not becoming effective as a legal dissolution until January, 1927, that standing alone was not sufficient to preclude the Corporation from recovery if it had satisfied the requirements of law in other respects. He refused to rule that upon the passage of the vote to dissolve by the Corporation its right to performance of the contract by the Bleachery ceased. No evidence was offered to show that a vote to dissolve or the filing of the certificate on January 7, 1927, disabled the Corporation to perform its contract or constituted a refusal to perform. A corporation dissolved under the statute of New York is expressly given the right to carry out its contracts. See New York v. New York & South Brooklyn Ferry & Steam Transportation Co. 231 N. Y. 18. The judge in his charge stated that, if the Bleachery solicited business of its customers direct and sent word through its representatives that it was going to do that, the jury might take that into consideration in deciding whether or not such conduct tended to prove a breach of contract; that for the Bleachery to solicit customers in that way while the contract was in existence and before there had been a breach of it, with the intention not to credit or pay the plaintiff for the work thus solicited
The Bleachery excepted to the refusal of the judge to rule (1) that if the second count is regarded as a quantum meruit the plaintiff cannot recover if it voluntarily and without just cause refrained from performing the contract; (2) that one who fails without just cause to perform his own contract cannot recover on the contract or on a quantum meruit; (3) that, even though the compensation was payable in monthly instalments, if before the Corporation had itself performed its part of the contract it without just cause voluntarily abandoned the contract, it cannot recover for work and labor performed and furnished up to the time of abandonment; and (4) that a wilful default in performance of a contract, whether the default goes to the essence of the whole contract or not, bars a recovery on the contract by the party so defaulting. The judge gave the Bleachery the benefit of these requests by ruling, in substance, that the Corporation could not recover if it voluntarily or without just cause failed to perform its part of the contract.
The evidence that the Bleachery failed to pay commissions when due in December (see National Machine & Tool Co. v. Standard Shoe Machinery Co. 181 Mass. 275, 278; Parrot v. Mexican Central Railway, 207 Mass. 184, 197), that it had decided to discontinue the agency of the Corporation and that before the end of December its agents went to the customers of the Corporation and solicited business direct, in the circumstances disclosed made it a question of fact for the jury whether the Corporation was justified because of conduct of the Bleachery in resigning as soliciting agent to take effect December 31, 1926. A count on an account annexed is assumed to contain all necessary allegations to render the defendant liable upon any common count. The admission that this count is for the same cause of action as the first does not incorporate into it the allegations of the first count, and there might be recovery under it without proof that the Corporation had completely performed all that was to be done by it under the contract. Massachusetts Mutual Life Ins. Co. v. Green, 185 Mass. 306, 310. This is not a contract to be performed for an entire price, but the stipulations as to time, terms and amounts made it so far severable or divisible in its operation that the Corporation might recover under the count on an account annexed the instalments due at the time the contract was terminated. Badger v. Titcomb, 15 Pick. 409, 413. Denny v. Williams, 5 Allen, 1, 4. Barrie v. Earle, 143 Mass. 1, 4, 5. Mark v. Stuart-Howland Co. 226 Mass. 35, 43. Tipton v. Feitner, 20 N. Y. 423, 427, 428, 429. Williston, Contracts, §§ 861, 870, 871, 1028, 1363. Under the rulings the Corporation was permitted to recover only in case the jury found that it committed no breach of the contract and was justified in resigning because of breach of contract by the Bleachery. The facts in the case at bar dis
The testimony presented issues of fact on the question of liability in each case, and the judge erred in directing a verdict for the defendant in the action brought by the Bleachery. This error cannot be held to have become nonprejudicial because of the verdict in the case submitted to the jury, even though under the rulings in that case the jury must have found that the Corporation was not liable for the breaches of contract upon which the Bleachery relies as the basis of its action. The Bleachery, after resting in the action brought by the Corporation, introduced further evidence in its own case, and we cannot say as matter of law that the jury would have reached the same conclusions upon the vital issues in the second case as they reached in the case submitted to them.
Nor can the contention be maintained that upon the testimony in the case brought by the Bleachery this court may now order a verdict for nominal damages for the plain-' tiff. We need not decide whether the evidence would support a verdict for substantial damages, for if we assume that such a verdict could not have been supported, we cannot say as matter of law that the jury would have found for the Bleachery on the question of liability. It may well be that upon a new trial the evidence as to damages would not in all respects be the same as that which appears in this record.
In the action of the Corporation against the Bleachery, #192821, the exceptions are overruled; and in the action of the Bleachery against the Corporation, #193207, the exceptions are sustained.
So ordered.