277 Mass. 75 | Mass. | 1931
This is a scire facias to determine the amount, if anything, due to the judgment creditor from the Beacon Trust Company, which was defaulted and adjudged a trustee in an action begun by trustee process in the Superior Court. The case is before us upon exceptions claimed by the plaintiff at the trial before a judge sitting without jury.
There was evidence which would support findings as follows: On May 6, 1920, William Mann, who held a contract for the purchase of sugar from S. B. Thomson Company, a partnership, of New York, consulted one Biliman, then vice-president and treasurer of the Beacon Trust Company, with reference to obtaining from that company a letter of credit to meet the requirements of his contract with S. B. Thomson Company. Billman agreed to issue the letter, directed the foreign department to attend to it, and wired the Bank of America, S. B. Thomson Company’s bank, in New York: “We have arranged credit with William Mann eighty-eight Broad Street Boston sale to him S B Thompson & Company three hundred tons Java sugar twenty and one
On November 1, 1920, on letterhead of the Beacon Trust Company over the signature of C. L. Billman, vice-president, Thomson’s lawyers were notified that seventy-three bags had been rejected as unsound “which, according to our figures, reduces your client’s claim to $3,250.68. Please advise us if the payment of this amount will be satisfactory.” November 5, 1920, Thomson’s lawyers wrote the Beacon Trust Company suggesting a compromise on weight allowances and asking for a check for $3,281.89, and on November 6 were notified, on the letterhead of the Beacon
No evidence of by-laws stating the powers of a vice-president and treasurer of the Beacon Trust Company or of any meeting of directors dealing with this matter was offered. Billman testified that he had no conference with officials of the trust company before acting, and no direction in regard thereto. He declared he was acting on behalf of Mann, but testified, as well, that if Mann had repudiated the trade, the trust company or himself, personally, would have had to carry it out as it was made in good faith.
What actually had taken place, whether Billman was acting for the trust company, whether he had authority to bind it by what he did, what was his ostensible authority, are matters of fact. With that we have nothing to do. The findings and rulings of the trial judge show that he was
There was no error in the refusals to give the rulings requested. All the rulings which were not given involved findings of fact which were contradicted by the finding actually made by the judge. They were inapplicable as statements of law material in the circumstances which the judge found to exist. Unless Billman had actual or ostensible authority to bind the Beacon Trust Company it had made no contract with the S. B. Thomson Company and done nothing with reference to making one.
It was immaterial whether an amendment to the writ released the trustee if no liability of the trustee existed. There was no error in the modification made in giving request 17. Setting aside money to meet a possible charge under a trustee writ is not, necessarily, an admission of liability to the alleged debtor in the writ, nor a ratification of a contract with him.
No case is called to our ■ attention, and we find none, which decides that a servant or officer of-a banking institution has even ostensible authority to bind the corporation by a contract to pay a considerable sum in order to avoid a possible liability for a larger amount. Judge v. National Security Bank of Boston, 272 Mass. 286, cited by the plaintiff, differs essentially and is not controlling here. A compromise requires action by the corporation. Hosher-Platt Co. v. Miller, 238 Mass. 518. The transaction before us was not a compromise, but is analogous to one. To avoid liability to Mann, a contract is made with Thomson, and, so far as distinctly appears, without knowledge by the corporation of the first liability except on the part of the officer responsible for the fault. No rule of law requires a finding that the officer had authority to bind the corporation in such circumstances. Doubtless a different finding was per
Nor do we find prejudicial error in the admission or exclusion of evidence. The testimony of Billman with regard to the practice of the trust company and the effect of the telegram to the Bank of America was admissible on the state of mind of Billman when-he went to New York and interviewed Thomson. His testimony with regard to conversations with MacCormack and Mann was competent on the issue for whom he was acting. An agent on the stand can testify to facts which show his authority, and for whom he was acting.
Exceptions overruled.