258 Mass. 573 | Mass. | 1927
This is a suit for the establishment of a debt alleged to be due from the intestate according to the tenor of a promissory note, a copy of which is made part of the bill as amended, and to reach and apply in payment certain funds of the estate in the possession of the remaining defendants, a firm of stockbrokers with whom the intestate dealt.
The first question is, whether the intestate became bound as a maker on the note which is dated November 30, 1923, for $160,000, payable March 3, 1924. It reads: “We promise to pay,” and it is signed “Covert Gear Syndicate By Robert C. Morse Manager.” The agreement in writing creating the syndicate is dated August 18, 1919. It was signed by ten persons, one of whom was the intestate. It is .described in the record as “Plan and Syndicate Agreement Covert Gear Company, Inc.” and it was organized for the purpose of purchasing three thousand five hundred four shares of the common stock of the gear company at a total price of $280,320, and to lend to one Gloetzner $200,000 upon receiving from him his note, or notes, for the aggregate amount of $200,000, to mature one year from date, with interest payable annually at the rate of six per centum, and secured by two thousand shares of the common stock. It was planned on behalf of the syndicate to borrow of the plaintiff bank $445,000, of which $200,000 was to be lent to Gloetzner, while $245,000 was to be used in payment for three thousand five hundred four shares of Covert Gear common stock. The balance of the purchase price, $35,320, was to be paid by the sale of stock and by payments from time to time by members of the syndicate, based upon the proportions called for under the respective subscriptions. The loan was to be secured by a pledge of “said stock and note or notes ... by 2,000 shares of stock given as original security therefor and the agreement of each member of the syndicate to act as a guarantor, up to the amount set opposite his name in column headed Guarantee of Gloetzner Note, of said note or notes.” The intestate's subscription was $15,000. The life of the syndicate, unless terminated earlier by the manager, was limited to one year, while the liability of each subscriber as a guarantor was not to exceed his proportionate share, and in terms the agreement bound the executors, administrators and assigns of the subscriber. It is stated in the agreement, that “The Subscribers hereby appoint Robert C. Morse as Manager,” but he was to receive no
The trial judge was warranted in finding that, in furtherance of the plan and in accordance with the agreement, Morse, on August 29, 1919, borrowed of the plaintiff bank on account of the syndicate $445,000 for the term of one year and pledged and assigned to the plaintiff as security for the loan certain of the assets of the syndicate in his possession, as well as the counterparts of the mutual agreement of the subscribers as to their liability as mutual guarantors. The manager had been clothed with authority, by the intestate and his associates, to hire money in the name of the syndicate and to pledge the syndicate’s securities. It is evident that the whole project would have failed at the outset unless this course was taken. The syndicate was not a corporation nor a partnership as between themselves. It was a voluntary association for the mutual benefit of the subscribers of each of whom Morse was the delegated agent with the powers previously described. Newell v. Borden, 128 Mass. 31. Magee v. Magee, 233 Mass. 341. Howe v. Chmielinski, 237 Mass. 532. Neville v. Gifford, 242 Mass. 124. The liability of the intestate by the terms of the note was not secondary. It was a primary obligation incurred by his representative and agent, and, as between himself and the plaintiff, he was a joint promisor. Long v. Colburn, 11 Mass. 97. Peoples National Bank v. Dixwell, 217 Mass. 436. The action is brought against the defendant only, and, the promise of the intestate being joint, if she relied on the nonjoinder of his associates this fact should have been pleaded in abatement. But, the question not having been raised, the action can be maintained against her. Ruggles v. Patten, 8 Mass. 480.
The whole enterprise, however, proved to be a failure. The Covert Gear stock became worthless, and Gloetzner, whose entire fortune was involved, having become insolvent, his note also, on which he had paid $40,000, was of no value
It appears in the findings of the trial judge — which were warranted by the evidence and are a sufficient compliance with the defendant’s request for findings under G. L. c. 214, § 23, Berman v. Coakley, 257 Mass. 159, — that at the date of maturity of the original note it was extended by renewal from time to time with the consent of all the members, and that the collateral also was changed with the written or oral consent of the intestate and the other members. The result was that, on November 30, 1923, the outstanding indebtedness had been so reduced that the note for $160,000 represented the final indebtedness. A statement, dated August 30, 1920, showing the amount due from each under the guaranties, was prepared and given to the members. The intestate’s share was $11,428.57. The accuracy of this apportionment is supported by the record; it corresponds with the balance due on the note.
The plaintiff could bring suit without first exhausting the securities pledged by the syndicate. Wilson v. Marlin-Wilson Automatic Fire Alarm Co. 151 Mass. 515, 517. And, the other members of the syndicate having paid their respective obligations, the intestate was liable for the balance remaining of $11,428.57, with interest from March 3, 1924. Ruggles v. Patten, supra, page 482. The note in suit, dated November 30, 1923, and maturing March 3, 1924, is a renewal note for the balance remaining due on the original note, and, the intestate having died September 7, 1923, it is contended that his death revoked the agency of Morse. But on September 1, 1923, he wrote to Morse that he gave his consent to the extension of both the syndicate and the loan for a period of six months from September 5, 1923, and the other subscribers also consented thereto. The intestate had bound himself, his executors, administrators and assigns to the payment of his obligations arising under the management of Morse, and, his authority not having determined when the renewal note was given, the defendant is chargeable
The same result follows even if Morse, as the defendant contends, was a trustee under an investment trust. The subscribers, if denominated as beneficiaries or shareholders, authorized Morse in his discretion to manage the affairs of the trust, free from their direction or control, as specified in the agreement, and he could borrow money in the name of the syndicate for the payment of which they could be charged. Dunbar v. Broomfield, 247 Mass. 372.
The demurrer of the defendant was overruled rightly, and the trial judge correctly ruled that, on the evidence, the plaintiff was entitled to a decree.
The letter of the intestate, dated December 27, 1922, to the brokers directing them to close his account “by selling all securities held and send me balance cheque at your earliest convenience. It is understood that you will retain what is necessary to cover the Covert Gear matter,” was admissible. The acceptance of the order, and the setting aside of the amount out of a larger sum in their possession, created a fund which could be reached and applied in payment of the plaintiff’s claim against the consignor. Buttrick Lumber Co. v. Collins, 202 Mass. 413, 414, 415. Security Bank of New York v. Callahan, 220 Mass. 84.
The testimony of a conversation, which took place before the intestate’s death, between Haynes, an assistant of Morse, and the plaintiff’s vice-president, to the admission of which the defendant also excepted, was admissible in explanation of the circumstances under which the letter in December was sent, and the intestate’s purpose in sending it.
But, no cross bill having been filed by the defendant, nor any counter claim, arising out of the transaction which is the subject matter of the suit and which might be the subject of an independent suit against her, having been stated in her answer, the question of a final accounting between her and the brokers is not before us. Forbes v. Thorpe, 209 Mass. 570.
The interlocutory decree overruling the demurrer, and the order denying the defendant’s motion for a separate report
Ordered accordingly.
