316 Mass. 252 | Mass. | 1944
The defendant is the assignee under an assignment for the benefit of creditors, dated August 29, 1940, whereby a corporation named 'Massachusetts Frame Corp. conveyed to him all its assets, including machinery for making furniture frames which was subject to mortgages for $1,700. The plaintiffs Mellen and Card, who are brothers-in-law and were formerly interested in that corporation, seek specific performance of an oral agreement of the defendant, made in September, 1940, to sell them the machinery, subject to the mortgages, for $450, which sum the defendant had received before this bill was brought.
The defendant does not deny the contract nor the receipt of the price, and stands ready to convey the machinery to the plaintiffs or to the intervener, as the court may order. The intervener is a corporation named Modern Parlor Frame Corp., which was formed in September, 1940, to
The facts appear in a master’s report which was confirmed. The machinery is installed, ready for use, on the premises now occupied by the intervener. It cannot readily be replaced in the market. Soon after the defendant agreed to sell it to the plaintiffs, one Langbort and four others, with the two plaintiffs, formed a new corporation named Modern Parlor Frame Corp., which is the intervener. The two plaintiffs were to contribute the machinery, subject to the mortgages, at a valuation of $800, and the five other incorporators were to contribute $400 each. Each of the seven was to have one seventh of the stock. The plaintiffs were also to be employed by the corporation, but no definite term of employment was agreed upon. There is no finding that there were to be contracts of employment in writing.
The others contributed their money, and the new corporation took possession of the machinery and used it with the consent of the defendant Berg and the plaintiffs. The plaintiffs were employed by the new corporation until June, 1941. In November, 1940, Berg’s attorney came to the place of business of the new corporation, and in the presence of all the stockholders demanded payment from the plaintiffs of the purchase price of $450. The plaintiffs could not pay. Then it was arranged that the new corporation should advance the money for them in four equal instalments. The new corporation paid to Berg three such instalments before June, 1941. The plaintiffs did not get certificates for their stock, but that was because the plaintiff Mellen failed to sign them as president, although Langbort presented them to him and asked him to sign. Mellen promised Langbort on several occasions that he would give the new corporation a bill of sale of the machinery, but he never did so. But the new corporation was at all times in possession of it with the consent of the plaintiffs.
On June 5, 1941, the plaintiffs tendered Berg the amount of the last instalment of the purchase price, and asked for a
The master found and ruled that “while Mellen and Card breached their agreement with both the intervener and the defendant Berg, . . . the intervener was not entitled to a transfer of said machinery by bill of sale from the defendant Berg.” The judge entered a decree declaring the title to the machinery to be in the plaintiffs, ordering the defendant Berg to convey it to them subject to the mortgages, ordering the intervener to surrender it to the plaintiffs, and ordering the intervener to pay costs to the plaintiffs. The intervener appealed.
The equitable title or right of the plaintiffs to the machinery, enforceable by specific performance, passed to the new corporation by delivery as well as because of the intention of the parties under the contract whereby the new corporation was established. G. L. (Ter. Ed.) c. 106, § 20. Hyland v. Hyland, 278 Mass. 112. Raldne Realty Corp. v. Brooks, 281 Mass. 233, 237. When the new corporation had paid the purchase price to the defendant Berg, its title became a legal one. Rowe Vending Machine Co. Inc. v. Morris, 276 Mass. 274, 281. All that it lacked was a formal instrument of transfer, and that was not strictly necessary. The plaintiffs received for their interest in the machinery the stipulated consideration, namely, shares of the capital stock amounting to two sevenths thereof, and not only a contract of employment but also actual employment, given apparently in good faith, that lasted for about nine months and was terminated only after the plaintiffs had sought to deprive the new corporation of the machinery that was essential to its business and that constituted the only contribution of the plaintiffs. The fact that the plaintiffs hold no stock certificates is not the fault of the new corporation nor of the other stockholders, and does not affect the plaintiffs’ proportionate stock interest. Central Mortgage Co. v. Buff,
Ordered accordingly.