262 Mass. 588 | Mass. | 1928
This is an action of contract, brought by the National Radiator Company in the name of the Treasurer and Receiver General of the Commonwealth, under the provisions of G. L. c. 105, § 3, against the Macdale Warehouse Co., a Massachusetts corporation, as principal, and the Massachusetts Bonding and Insurance Company, also a Massachusetts corporation, as surety, on a warehouseman’s bond dated January 9, 1920, running to Charles L. Burrill as Treasurer and Receiver General, or his successor or successors in office.
The Macdale company commenced business on January 15.1920, on leased premises at 36 Scotia Street, Boston, and thereafter, for a short time, conducted its business at 122 West First Street, South Boston. On or about January 1, 1923, the building at 36 Scotia Street having been sold and the lease of the company having expired, it transferred all the
The only goods received in storage at 350 C Street belonged to one Berry, either under the name of Commonwealth Pipe and Supply Company, or of the Hanover Sales Company, and goods belonging to one Ludden. Berry, doing business in the name of the Commonwealth Pipe and Supply Company, was indebted to the National Radiator Company (for whose benefit this action is brought) and had placed in storage at 350 C Street a quantity of steel pipe. To satisfy the radiator company, which was pressing for payment, McCaffrey, on June 11, 1923, issued to Berry two receipts for this pipe. At the request of Berry these receipts were destroyed by McCaffrey on the same day they were issued and Mc-Caffrey issued to the radiator company two receipts for cer
The question, whether or not McCaffrey had apparent authority, is one of fact on all the evidence. Hosher-Platt Co. v. Miller, 238 Mass. 518, and cases cited. It is plain the trial judge found that McCaffrey did not have apparent authority from the Maedale company to issue receipts, as indicated by the eleventh and twelfth rulings given as requested by the defendant Massachusetts Bonding and Insurance Company. Besides, the giving of the bonding company’s fifteenth request, that upon all the evidence the plaintiff is not entitled to recover, is equivalent to a finding that McCaffrey had no ostensible authority to bind the company. The reported evidence warranted that finding and it must stand. “The general and special findings of the judge in an action at law are to stand if warranted in law upon any possible view of the evidence.” Moss v. Old Colony Trust Co. 246 Mass. 139, 143. Acts and declarations of
Although McCaffrey owned nearly all the stock, his acts were not acts of the corporation with authority given by the directors at a regular meeting. England v. Dearborn, 141 Mass. 590. Star Brewing Co. v. Flynn, 237 Mass. 213, 217. Selden Truck Corp. v. Selden Truck Service Co. 257 Mass. 58. The findings that the corporation had turned over all the goods held by it in storage, and had sold all its equipment to another company, and had suspended doing any business whatever for a period of about six months, that there were no signs on the building, doors or windows to indicate that the corporation was engaged in business at 350 C Street, warranted a finding that McCaffrey was not clothed with ostensible authority to issue receipts in the name of the Macdale company or to resume its business in a new location. Perry v. Osborne, 5 Pick. 422. Cashin v. Corporation Finance Co. 251 Mass. 60, 64. Wojcik v. Cadillac Berkshire Co. 256 Mass. 317, 319. Commercial Casualty Ins. Co. v. Daniel Russell Boiler Works, Inc. 258 Mass. 453, 454, 455. McCaffrey, although director, treasurer and general manager, as
The contention of the plaintiff that the defendant bonding company has no defence to this action because the default of the Macdale company established its liability cannot be sustained. A final judgment against the principal named in the bond is required to establish liability of the surety. See McIntire v. Cottrell, 185 Mass. 178, 182. The entry of a default against the principal is not equivalent to a final judgment. Hooten v. G. F. Redmond & Co. Inc. 237 Mass. 508, 513. See Gardner v. Butler, 193 Mass. 96; Hurnanen v. Gardner Automobile Co. 225 Mass. 189. As the judgment by default against the principal is not final judgment on the merits the surety is not bound by it. O’Connell v. O’Leary, 151 Mass. 83, 84. New York Central & Hudson River Railroad v. The T. Stuart & Son Co. 260 Mass. 242, 246, 249.
The finding of the trial judge against the Macdale Warehouse Company and the assessment of damages against it in the sum of $1 upon default, if erroneous, have no bearing upon any issue involved between the plaintiff and the surety on the bond. Accordingly the question, whether that finding was or was not warranted, need not be considered. The argument of the plaintiff upon this question relates only to its effect upon the liability of the surety.
The findings of the trial judge were not made without evidence to support them. We find no error in dealing with the plaintiff’s and defendants’ requests for rulings. The exceptions of theo plaintiff are overruled, and in accordance with the stipulation of the parties, judgment is to be entered for the defendant Massachusetts Bonding and Insurance Company in accordance with the findings of the Superior Court.
So ordered.