314 Mass. 1 | Mass. | 1943
The principal object of this bill in equity is to set aside a transfer by the plaintiff, Di Massa, of one hundred sixteen shares of the capital stock of the Great Ameri
Di Massa, in 1922, began to manufacture celluloid toys and novelties; he then formed a partnership with his cousin, the defendant Ciampa, and they conducted the business until 1930, when it was transferred to the Great American Novelty Company, hereinafter referred to as the company, which has since continued the business. From the time of the incorporation of the company until October 28, 1939, Di Massa was the treasurer and manager. He held one hundred sixteen shares of stock. Ciampa owned twenty-nine shares, and the defendants Cohn and the Irwin Corporation the remaining fifty-five shares. The defendants Irwin Cohn and Mary Cohn were husband and wife, residents of New Jersey. They owned and controlled the corporation, Irwin Corporation, which had a place of business in New York City and which was the selling agency of the company. Late in July, 1939, Irwin Cohn had the books of the company examined. This examination disclosed that the payrolls had been altered and increased; the accounts payable had been overstated in an amount exceeding $19,000; overpayments in some cases were made; two bank deposits, one in the name of the bookkeeper and another in the name of the company, were not mentioned in the books; and various other irregularities appeared. The judge found that these irregularities in bookkeeping, altering of payrolls and the secreting of the corporate funds, were intended to conceal from the individual defendants the actual condition of the company and, to a large extent, to enable the company to evade payment of taxes to the national and State governments, and to permit Di Massa and the bookkeeper to misappropriate for themselves the money belonging to the company.
The disclosures from the records and books of the company were followed by conferences between the plaintiff, his attorneys, and the Cohns and their attorneys, and finally
We have a transcript of the evidence and a report of the material facts. It would serve no useful purpose to set forth any detailed narrative of the testimony. In equity, findings of a judge made on oral testimony are not to be reversed unless they are plainly wrong. Boston v. Santosuosso, 307 Mass. 302, 332. Blair’s Foodland Inc. v. Shuman’s Foodland, Inc. 311 Mass. 172, 174.
The testimony upon the point whether the transfer of the plaintiff's stock was free and voluntary or resulted from overcoming his will and judgment by threats, fear or other wrongful influences was conflicting, and presented an issue of fact for the determination of the trial judge with the burden of proof resting on the plaintiff. The finding that the agreement in accordance with which the plaintiff's stock was transferred was not brought about by coercion or duress was not plainly wrong and cannot be disturbed. It was decisive of the case. The law applicable to duress has been so fully discussed in recent decisions that it is not necessary to restate it. It is sufficient to refer to some of these decisions. Freeman v. Teeling, 290 Mass. 93. Fleming v. Dane, 298 Mass. 216. Carey v. Fitzpatrick, 301 Mass. 525. Omansky v. Shain, 313 Mass. 129. Cappy’s, Inc. v. Dorgan, 313 Mass. 170.
The plaintiff’s requests for rulings have no standing on this appeal and we pay no attention to them for the reasons stated in Graustein v. Dolan, 282 Mass. 579, Estey v. Gardner, 291 Mass. 303, Worcester Bank & Trust Co. v. Ellis,
Decree affirmed with costs.
