266 Mass. 418 | Mass. | 1929
This is a suit in equity under G. L. c. 156, §§ 36, 38, to enforce the liability of the officers of the Golden Distributing Corporation, hereafter called the Golden Company, for the debts of the corporation, the defendants being charged with making a false return.
The plaintiff alleged that the annual report of the corporation was false in respect to the item of merchandise, $51,-534.55. By this item the sum $4,822.90 appears as office furniture, equipment, stationery, and the like. This sum of $4,822.90 was found to be correct, that the corporation had tangible assets to this extent. The controversy concerns the remainder of the item of $51,534.55, namely $46,711.65.
The Golden Company was in the business of distributing moving picture prints to theatres in New England. It obtained these prints as lessee from national distributors. The national distributors remained the owners, and were to receive sixty-five per cent of the gross rentals received for the prints by the Golden Company. It was the practice of the national distributors to receive from the Golden Company when the prints were delivered to it, advances on account of the sixty-five per cent royalties which were expected to become due under the contract. These advances were treated by the Golden Company as assets. Oh Decern
The judge ruled that these advance payments, “coupled with the possession of the prints as lessee but not as owner, were not properly described as ‘merchandise ’; and that as to the asset in question ‘merchandise’ was a material false representation, although not known to be false by the individual defendants in the sense that they were conscious of any wrong-doing in describing it as ‘merchandise.’ ” He found, following Berkshire Coal & Grain Co. v. Wing, 261 Mass. 38,. that this false representation was one which the defendants could have known was false on reasonable examination, within the meaning of G. L. c. 156, § 36.
G. L. c. 156, § 47, requires an annual report of a corporation to be submitted to the commissioner, the report to contain a statement of assets and liabilities of the corporation to be made substantially in the form set out in this section; and under § 36 of this chapter, the officers shall be liable for the debts of the corporation “if any statement or report required by this chapter is made by them which is false in any material representation and which they know, or on reasonable examination could have known, to be false.”
The purpose of the statute requiring an annual return or statement of the condition of the corporation is to give the public information of the character and condition of the corporation, so that those dealing with it may know the facts and its financial condition. Thayer v. New England Lithographic Steam Printing Co. 108 Mass. 523, 528. The advances made by the Golden Company to the national distributors under the contract were not merchandise and could not correctly be described as such. “Merchandise” is, it has been said, a word of large signification. Tupper v. Barrett, 233 Mass. 565, 568. It is however limited to “subjects of commerce,” goods, wares, commodities, having'“a sensible, intrinsic value ”; Citizens’ Bank v. Nantucket Steamboat Co. 5 Fed. Cas. 719; or tangible property which may be the subject of sale; New England & Savannah Steamship Co.
The word "merchandise ” in the certificate of the condition of the corporation would lead a creditor to believe that the corporation had actual tangible assets to the amount of $51,534.55. The return stated that the Golden Company possessed merchandise to this amount. The natural inference would be that this amount could be reached if necessary to satisfy the debts by the corporation. The portion representing advance payments to the national distributors was a mere bookkeeping asset, which could not be sold; it was not a tangible asset. Calling it merchandise would mislead a creditor, and it was correctly ruled that it was not merchandise; that, within the meaning of the statute, it was a false representation which on reasonable examination the defendants could have known to be false.
An examination of the evidence shows that the defendants acted in good faith and were not conscious they were making a false return in describing this asset as merchandise; and they may have been misled by information they received from accountants and others. But we are satisfied that the return was false, and the individual defendants could have known this if they had made a reasonable examination.
The plaintiff’s judgment was excessive by the amount of $1,000 and interest thereon. The original action was for $9,000 on eleven notes and one check, but the check and one of the notes were in payment of one of the notes for $1,000. The result was that the plaintiff recovered judgment by default for $1,000 more than was actually due. The plaintiff now agrees that in any decree which may be made in its favor, its judgment may be enforced only for the residue
The judge ruled that to attack the judgment a petition to vacate it or some proceeding for its direct impeachment was necessary; and that the demand was lawful and sufficient. The trial judge was right. The judgment was conclusive: it could not be attacked collaterally. Thayer v. New England Lithographic Steam Printing Co., supra, and cases cited. The written demand of September 26, 1927, on the Golden Company was under the statute; it was lawful and sufficient.
The notes upon which the plaintiff’s action was based were given while all of the defendants were officers of the Golden Company. Before judgment in the original action was entered, three of the defendants resigned. The judge ruled that as the plaintiff’s debt was contracted while all the defendants were officers, they all could be held liable in this proceeding. To allow the defendants to escape liability by resigning before entry of judgment would defeat the purpose of the statute: the ruling of the judge was right. Felker v. Standard Yarn Co. 148 Mass. 226. Berkshire Coal & Grain Co. Inc. v. Wing, 261 Mass. 38. See Heard v. Pictorial Press, 182 Mass. 530; E. S. Parks Shellac Co. v. Harris, 237 Mass. 312.
Decree affirmed with costs.
