263 Mass. 543 | Mass. | 1928
This action of contract against a corporation which did no business in the Commonwealth was begun by trustee process. No service was made on the principal defendant. The trustee, the Central Railway Signal Company, answered that it had funds, and thereupon Charles Hardy, Inc. and the Associated Metals and Minerals Corporation appeared as claimants. The first bill of exceptions is by these claimants. The second bill of exceptions relates to exceptions taken by the defendant. The third bill has reference to the trial on the merits. The fourth bill concerns the allowance of the motion charging the trustee. The claimants hereinafter will be called Hardy, Inc. It contended that the funds attached belonged to it; on this issue the jury found for the plaintiff. At the trial on the merits the jury returned a verdict for the plaintiff.
The plaintiff’s action was to recover for breach of warranty in the sale of sodium cyanide to it by the Société d’ElectroChemie et d’Electro-Métallurgie, a French corporation, hereinafter called the Société or the French corporation. The trustee purchased potassium perchlorate by two contracts with the Société or its agent, Hardy, Inc. The Société was the manufacturer of chemicals in France and Switzerland. Hardy, Inc., an importer in New York, was given the exclusive sale of the principal defendant’s products in the United
The trial judge ruled that the burden of proof was upon the claimant to establish that the funds attached by trustee process belonged to it. This ruling was right. Hubbard v. Lamburn, 189 Mass. 296, 298. In Jordan Marsh Co. v. Hale, 219 Mass. 495, 496, the trustee answered no funds. It was there held that the burden was upon the plaintiff to show that the trustee was in possession of funds belonging to the principal defendant. In the case at bar the trustee admitted it had funds of the principal defendant, and on this ground the cases are distinguishable.
The important question is, To whom did the moneys in the hands of the trustee belong? This is the question presented by the first bill of exceptions. Hardy, Inc. and the Société made an oral agreement. There is no contention that the law of France where the contract was made controls. The jury could find from the testimony of Hardy that the goods were not sold by the Société to Hardy or Hardy, Inc.; that the relation between them was not that of vendor and vendee. Hardy testified in cross-examination that the corporation, Hardy, Inc., was acting as agent of the French corporation. It was shown that Hardy, Inc. requested information from the Société by cable as to “How much More may we sell.” The invoices refer to a commission of four and a half per cent. It also appeared that Hardy, Inc. in its dealings and correspondence purported to act as the agent of the French corporation. All the acts of the parties
It does appear, however, and it is not contradicted, that the French corporation desired to take no credit risk; it wished to be paid in France for all the goods ordered by Hardy, Inc. and it did not intend to look to the customers of Hardy, Inc. for payment. To accomplish this end it was agreed that Hardy, Inc. should obtain the letter of credit; when the French company was paid for the shipment in. France by the French bank, that bank was to send the draft with the bill of lading attached to the New York bank issuing the letter of credit, which bank upon receiving payment from Hardy, Inc. or upon its credit, would indorse the order bill of lading to it. This method was pursued in the shipments to the trustee of the goods involved in the transaction in question. The effect of this indorsement of the order bill of lading representing the merchandise was to vest the title and possession to the goods in the Hardy corporation. G. L. c. 106, § 29. G. L. c. 108, §§ 30, 31. National Wholesale Grocery Co. Inc. v. Mann, 251 Mass. 238, 248. Consol. Laws of New York, Book 40, Per. Prop. §§115, 218. Code of Laws, U. S. A. Title 49, §§ 111, 112.
Although Hardy, Inc. was not the purchaser of the merchandise, it has in our opinion established its right to the money in the possession of the trustee; and while a verdict can rarely be directed in favor of the party who has the burden of proof, Kelly v. Halox, 256 Mass. 5, 9, in the case at bar the plaintiff does not contend that the jury should disbelieve testimony of Hardy as to the nature of the agreement between Hardy, Inc. and the French corporation. See Parsons v. New York, New Haven & Hartford Railroad, 216 Mass. 269, 273, 274; Kelly v. Halox, supra. The plaintiff’s contention is, in the view of the testimony of Hardy most favorable to it, that the claimant has no right to the fund attached. The documentary evidence, about which there appears to be no dispute, proves that the French corporation has been paid. No contention is made that Hardy, Inc. has been reimbursed,
Even if the jjury could disbelieve the testimony of Hardy as to the nature of the oral agreement, the documentary evidence, the genuineness of which is not questioned, is of itself sufficient to establish the right of Hardy, Inc. to the funds, good against the French corporation and those claiming under it. These documents show that the letters of credit were issued on application of Hardy, Inc.; that the French corporation was paid for the merchandise by Hardy, Inc.; that Hardy, Inc. secured title to the merchandise by the bank’s indorsement of the bill of lading. It therefore had a lien upon the funds and can hold them against the attaching creditor. McAuliffe & Burke Co. v. Gallagher, 258 Mass. 215, 218. “ an equitable lien does not of necessity rest
exclusively upon an express agreement. It may arise from circumstances of such nature as to require the presumption upon general considerations of justice as between those conducting commercial transactions according to a reasonable standard of integrity that an equitable hen was meant. . . . If the arrangement between the parties, interpreted in the light of the conditions in which they were placed, indicates a contemporaneous intention to adjust their rights upon a
The claimants filed motions in writing for a directed verdict; the right to rely on the lien is therefore open. Proctor v. Dillon, 235 Mass. 538, 540. Krasnow v. Krasnow, 253 Mass. 528, 529. It follows from this that in the first bill of exceptions, the claimants’ exceptions are sustained. The second bill of exceptions is waived. The exceptions in the third bill are sustained and the action of the plaintiff against the defendants is dismissed for want of jurisdiction. Cheshire National Bank v. Jaynes, 224 Mass. 14. In the fourth bill of exceptions the allowance of the plaintiff’s motion to charge the trustee was error; the exceptions of the claimants are sustained and an order is to be entered discharging the trustee.
So ordered.