269 Mass. 451 | Mass. | 1929
This is an action of contract on an account annexed to recover the sum of $2,374 and interest. The account annexed contains six items aggregating said amount. The answer is a general denial and payment. The case was heard by a judge of the Municipal Court of the City of Boston, who filed a “memorandum of rulings” in which he granted twelve requests of the plaintiff for rulings and denied nine others. The trial judge found for the defendant and reported the case to the Appellate Division for determination. The last named court made the entry “Report dismissed,” and the case is before this court on “appeal from said final decision.”
The first item was for $450, alleged to be due for a one-half interest in furniture sold and delivered to the defendant. The remaining items represented various sums of money alleged to have been advanced and loaned by the plaintiff to the defendant between January 1, 1925, and June 22, 1926, inclusive, and interest thereon from June 30, 1926, to date of writ. The evidence was conflicting.
The plaintiff testified, in substance, that before the organization of the defendant corporation Blaisdell proposed to him that a corporation be organized for the purpose of engaging in the business of developing water power, the plaintiff and Blaisdell having prior thereto had considerable engineering experience in connection with such projects. On cross-examination, and in answer to questions asked by the judge, the plaintiff testified, in substance, that Blaisdell proposed that the plaintiff should purchase at par one half of the capital stock of the $5,000 worth proposed to be issued by the corporation to be organized; that he did not agree to purchase said stock but he and Blaisdell agreed that the plaintiff should have an option to purchase said stock after the corporation was organized. In direct examination he said that he never exercised his option to purchase stock and that no stock was ever offered, tendered or issued to him except a certificate numbered four for one share.
On the other hand, Blaisdell testified, in substance, that the plaintiff suggested to him that they form a corporation for the engineering business; that they agreed each would contribute $2,500 in cash for the necessary capital; that
Without further recital of- the evidence, it is plain the trial judge was warranted in finding, as he did, that “The money was paid by the plaintiff to the defendant not on a debt, or as a gift, or on any preexisting obligation of the plaintiff to the defendant, but was paid for stock and created an obligation on the part of the defendant to deliver said stock to the plaintiff.” In the circumstances attending the organization of the defendant corporation, and considering the fact that the defendant was a close corporation, it is equally plain that the evidence and the inferences of fact which rightly could be drawn therefrom warranted the trial judge in finding that “there was an express ¡[implied?] promise” of the defendant corporation “to deliver stock for the money and furniture” “when called for.” This is not a case where the defence is a contract made before the or
Of the nine requests for rulings which were refused the plaintiff has argued six. Of these, those numbered one, two, seven, eleven and thirteen in substance seek a ruling that "Upon all the evidence the plaintiff is entitled to recover." As has been said above, the evidence was ample to warrant a finding that the directors of the defendant corporation understood that the plaintiff was paying his money and transferring his interest in the furniture to the defendant corporation in expectation of receiving shares of the corporation in return, and that the directors by a formal vote as to the transfer of . the furniture expressed that understanding and agreement. Moreover, requests two, seven, eleven, thirteen, and fourteen are not applicable on the facts found, whatever may be their value as accurate statements of legal principles when applied to a different state of facts. John Hetherington & Sons, Ltd. v. William Firth Co. 210 Mass.v 8. Hooper v. Cuneo, 227 Mass. 37, 40. Request numbered twenty-one,.based on G. L. c. 259, § 6, assumes, contrary to the facts found, that the contract express or implied of the defendant and plaintiff to sell or transfer the stock of the defendant to the plaintiff was void, because the corporation was not the owner or assignee of the stock at the time the contract was made. G. L. c. 259, § 6, is not applicable to the facts found, and request numbered twenty-one was denied rightly. Wood v. Farmer, 200 Mass. 209, 215.
Without further consideration of the many contentions of the plaintiff, all of which have been examined and analyzed, we are of opinion the trial judge committed no reversible error in the conduct of the trial, and that the order of the Appellate Division "Report dismissed" should be affirmed.
So ordered.