326 Mass. 401 | Mass. | 1950
This is. a bill for an accounting under a contract dated September 27, 1946, for the sale by the plaintiff to the defendant of fifty shares of the common stock of Spencer Wire Company, West Brookfield Plant, a Massachusetts corporation. The contract, after reciting that on that day the plaintiff had indorsed and delivered the shares to the defendant, made the following provisions as to payment: “2. The said MacDonald does hereby agree to pay to the said Woods, except upon the contingency hereinafter stated, Twenty-five Thousand Dollars ($25,000) at any time during the period of two years from the date of the execution of this agreement. 3. In the event that the said MacDonald does not, during the said period of two years thereof [sfc], pay the full sum of Twenty-five Thousand Dollars ($25,000), and it becomes necessary to liquidate or sell the said Spencer Wire Company, West Brookfield Plant, the said Woods, his heirs, executors, administrators and assigns, shall be. paid the sum of Fifty (50) per cent of all monies received .by or distributed to the said MacDonald as a stockholder on distribution.” The defendant appealed from a final decree ordering him to pay to the plaintiff the sum of $25,000 with interest.
The judge made voluntary findings, which, as the result will not be affected, we treat as the equivalent of a report of material facts made pursuant to G. L. (Ter. Ed.) c. 214,. § 23, as appearing in St. 1947, c. 365, § 2. Both parties treat the evidence as properly reported. The judge’s findings were filed May 1, 1950. On May 16, 1950, there was filed the following paper signed by counsel for the defendant: “Now comes the defendant and upon appeal moves that the testimony of witnesses examined at the hearing of the above case before the said court be reported to the Supreme Judicial Court.”. No. formal action was taken on
. The case must be decided on the pleadings and the findings of the judge. Sidlow v. Gosselin, 310 Mass. 395, 397-398. Gordon v. Guernsey, 316 Mass. 106, 108. Skerrett v. Hartnett, 322 Mass. 452, 454. At the date of the contract each party owned fifty shares of the capital stock. The judge found to be “without basis” the defendant’s contention that the plaintiff had been paid through the release of $25,000 deposited by. the plaintiff as collateral to secure a loan made by a bank to the company. He made no finding that it had become necessary to liquidate or sell the conw pony, but, inferentially tending to .the. contrary,. he found