Page images
PDF
EPUB

(226 Mass. 14)

The facts out of which these exceptions

BARRY v. NEW YORK HOLDING & CON- grew are as follows: In November, 1913, the

STRUCTION CO. et al.

(Supreme Judicial Court of Massachusetts.

Suffolk. Jan. 24, 1917.)

1. MASTER AND SERVANT AMOUNT OF RECOVERY.

41(1)-WAGES

An employé working on a salary and commission basis, and wrongfully discharged, may recover damages based upon the commissions he probably would have earned for the unexpired portion of the contract term.

[Ed. Note. For other cases, see Master and

Servant, Cent. Dig. § 117; Dec. Dig. 41(1).]

2. GARNISHMENT 198-JUDGMENT AGAINST
PRINCIPAL DEFENDANT EFFECT ON GAR-
NISHEE.
A general judgment against the principal
defendant without having the trustees charged
discontinues the action against the trustees.
[Ed. Note. For other cases, see Garnish-
ment, Cent. Dig. § 391; Dec. Dig. 198.]
3. GARNISHMENT 198-VACATION OF JUDG-
MENT AGAINST PRINCIPAL-EFFECT ON GAR-
NISHMENT.

Rev. Laws, c. 193, § 14, providing that upon vacating a judgment the case may be disposed of as if no judgment had been entered, eliminates a discontinuance against trustees occasioned by entering the vacated judgment against the principal defendant.

[Ed. Note.-For other cases, see Garnish-
ment, Cent. Dig. § 391; Dec. Dig. 198.]
4. GARNISHMENT 198-JUDGMENT AGAINST

PRINCIPAL DEFENDANT EFFECT ON Gar-
NISHEE.

Rev. Laws, c. 193, § 20, continuing at tachments expiring within a limited time after entry of a general judgment, does not continue a trustee attachment after entry of a general judgment against the principal defendant.

[Ed. Note.-For other cases, see Garnishment, Cent. Dig. § 391; Dec. Dig. 198.] 5. GARNISHMENT 245-SPECIAL JUDGMENT -POWER TO ENTER.

Rev. Laws, c. 177, § 25, authorizing entry of special judgments upon bonds dissolving attachments after the principal debtor's bankruptcy, etc., does not empower the court to enter a special judgment against the sureties on a common-law bond.

[Ed. Note. For other cases, see Garnishment, Dec. Dig. 245.]

Exceptions from Superior Court, Suffolk County; William Cushing Wait, Judge. Action by Richard F. Barry against the New York Holding & Construction Company. Special judgment for plaintiff, and defendant and its trustee in bankruptcy bring exceptions. Exceptions sustained and overruled.

Bates, Nay, Abbott & Dane, of Boston, for plaintiff. Jas. T. Connolly and M. J. Mulkern, both of Boston, for defendant and trustee in bankruptcy.

LORING, J. This case comes before us on exceptions taken by the trustee in bankruptcy of the defendant corporation. Exceptions were also taken by the defendant. They add nothing to those taken by the trustee and if the trustee's exceptions are not good it is plain that the defendant's are not.

plaintiff brought an action of contract for breach of an agreement dated September 22, 1913, by which the defendant employed the plaintiff as its agent for the term of one year then next ensuing. The case was sent to an auditor and by subsequent agreement the auditor's findings were made final. On October 22, 1915, an order was entered directing judgment to be entered in favor of the plaintiff in the sum of $2,090 damages and his taxable costs. The costs were afterwards taxed in the sum of $37.89 and judgment was entered for those two sums on November 15th following. On the 15th of December following this judgment was vacated on motion of the plaintiff. On the following day a suggestion of the defendant's bankruptcy was made and an order was entered giving the trustee in bankruptcy leave to appear.

The action was begun by trustee process and E. J. Cross Company, Edward F. Miner Building Company and Joseph M. Dolan were duly summoned as trustees. After the judgment had been vacated the E. J. Cross Company and the Edward F. Miner Building Company filed trustees' answers stating that at the date of the writ they had in their hands $816.25 and $4,415.25 respectively. Thereafter the plaintiff made a motion to charge these trustees and to have the other trustee defaulted. He also made a motion for a

special judgment against the defendant under the provisions of R. L. c. 177, § 25.

The facts which gave rise to the motion for a special judgment were as follows: On December 10, 1913, the defendant filed a bond which was in fact a claimant's bond to release property attached by trustee process. On the reverse side of the bond there were originally printed the words "Claimant's Bond to Dissolve Attachment Trustee Process." In this sentence the word "Claimant's" had been stricken through and the word "Defendant's" appears (we assume it After this bond had was written) above it. been filed the clerk of the court signed at least two certificates that:

"A bond for the purpose of dissolving the attachment made in said action, and of the goods, effects and credits of defendant in the hands and possession of said supposed trustees has been filed with me this day.'

These certificates were sent by the plaintiff's then attorney to two of the trustees, namely, to the E. J. Cross Company and the Edward F. Miner Building Company. A condition of this bond is:

"If the said New York Holding & Construc

tion Company shall within thirty days after final judgment in the aforesaid action, or after special judgment entered therein in accordance with the provisions of section twenty-five of chapter one hundred and seventy-seven of the Revised Laws of the commonwealth of Massachusetts, pay to the said plaintiff the amount for which the said trustee may be charged, not

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

exceeding the value of the property in their auditor found that during the period covered hands, or so much thereof as will satisfy the by the first contract the plaintiff had secured amount that may be recovered by said plain-contracts under which the defendant had retiff, then this obligation shall be void," etc.

At the hearing on the motion to charge the trustees and the motion for this special judgment, the trustee in bankruptcy asked the judge to rule (1) in effect that upon the facts found by the auditor the plaintiff is entitled to $90 damages only; (2) that upon the docket entries and record in the case the trustees cannot now be charged; and (3) that upon all the evidence the plaintiff is not entitled to the entry of the special judgment asked for. These rulings were refused, exceptions were taken and these are the exceptions now before us.1

[1] 1. The findings of the auditor as to the first of these three exceptions are in substance as follows: The defendant was the inventor of a material known as "ribbed concrete" or "salt glazed tile." This was a comparatively new building material. It was the best fireproof building material on the market. It was more costly than brick or terra cotta, but by using it a saving could be made in the construction of buildings consisting of a steel frame and a concrete exterior. In December, 1912, the defendant corporation made an agreement with the plaintiff by which it appointed him its agent for a defined territory for a period of six months from January 1, 1913. Under this agreement the plaintiff was to devote one-half his time to procuring contracts for "ribbed concrete" in the construction of buildings, and was to receive a commission on the gross amount of those contracts. Although this contract came to an end on July 1, 1913, the parties continued to work under it until September 22, 1913. On September 22, 1913, the defendant corporation made the contract with the plaintiff on which this action is based. That contract was to continue for one year from its date. The plaintiff was to devote all his time in place of one-half his time and was to receive a certain salary there mentioned and a commission on all contracts procured under the agreement, the amount of the commission being a percentage of the gross amounts received under these contracts. The auditor found that on November 21, 1913, the defendant wrongfully discharged the plaintiff and this action was brought on the next day. The

1 The exact rulings asked for in this connection are as follows:

1. That evidence upon which the auditor based his alternative finding of two thousand and ninety dol

lars ($2,090) was improperly admitted.

2. That the alternative finding of the auditor for two thousand and ninety dollars ($2,090) based upon

such evidence is erroneous.

3. That upon the facts found by the auditor no judgment for the plaintiff for two thousand and ninety dollars ($2,090) can properly be entered.

4. That as matter of law the evidence introduced as to damages for loss of commissions as set forth

in the auditor's report was not sufficient to justify a finding for the plaintiff in the sum of two thou

found that the method of conducting business ceived from $51,000 to $52,000. He further by the parties was for the plaintiff to call upon architects and get plans and specifications of fireproof buildings to be constructed and submit the plans and specifications to the defendant. Between January 1, 1913, and November 20, 1913, the plaintiff submitted to the defendant plans of sixty-five buildings to be constructed and during that time he made from ten to fifteen calls a day on architects in pursuance of the defendant's business. When the plaintiff was discharged on November 21, 1913, he had not in fact procured any contract for the use of the defendant's material under the second contract. The facts as to what was done under the first contract were admitted by the auditor (subject to the defendant's exception) upon the question of damages suffered by the plaintiff by reason of the wrongful termination of the second contract. The auditor found that the defendant owed the plaintiff $90 for salary and for cash expenses. In addition he found that the plaintiff had suffered damages to the amount of $2,000 from the wrongful breach of the second contract.

We are of opinion that the judge was for by the trustee in bankruptcy. The plainright in refusing to give the first ruling asked tiff in the case at bar is claiming damages for the defendant's act in wrongfully discharging him from its employ ten months before the period had terminated during which it had agreed to employ him upon the basis mentioned above. We are of opinion that on the facts found by him the auditor was warranted in making a finding for more than nominal damages for this breach of the contract on its part. Of course the auditor could not know what commissions would have been earned. But under the circumstances of this case that did not prevent the auditor finding more than nominal damages. The amount of his earnings during nine months under the first contract might well be taken as a basis for determining what he would have earned under the second contract during the ten months during which he had a right to earn commissions under that agreement. case comes within Dennis v. Maxfield, 10 Allen, 138; Speirs v. Union Drop Forge Co., 180 Mass. 87, 89, 61 N. E. 825; Gagnon v. Sperry & Hutchinson Co., 206 Mass. 547, 92 N. E. 761; Hetherington v. Firth, 210 Mass. 8, 95 N. E. 961; Fox v. Harding, 7 Cush. 522 (cited in the Gagnon Case with approval); Earle v. Commonwealth, 180 Mass. 579, 63 N. E. 10, 57 L. R. A. 292, 91 Am. St. Rep. 326; Loughery v. Huxford, 206 Mass. 324, 92 N. E. 328; Randall v. Peerless Motor Car Co., 212 Mass. 375, 380, 99 N. E. 221. Of the cases relied upon by the trustee in bankruptcy

The

is the only case which requires notice. In that case the defendants agreed to employ the plaintiff as a selling agent until they should discontinue business. The course of business was for them to sell the plaintiff samples from which he could get orders. It appears from the original papers that the breach which the judge (who tried the case without a jury) found to have been committed consisted in not having sold to the plaintiff the samples which he ordered. The plaintiff made no claim for commissions on the sale of these samples. What he did ask was for commissions which he would have earned had he had these samples to show. On its face this case seems to be more like the case at bar than it will be found to be on an examination of the original papers. In that case as in the case at bar commissions had been earned by the plaintiff during an earlier period and by agreement of the parties the judge made a finding in favor of the plaintiff on the first and second counts for the balance due the plaintiff for the earlier commissions. But the amount found to be due was the balance due on account of those earnings and the amount and the particulars of those earlier commissions were not in evidence. In addition the plaintiff in that case did not ask to have the amount of the commissions which he would have earned during the later period determined on the basis of what he did earn during the earlier period. What the plaintiff in that case did was to ask the judge to find without any evidence of previous earnings what he would have earned if the samples which he was entitled to had been furnished to him when he was entitled to them. The exception to the first ruling must be overruled.

gave the court the power to dispose of the case
at bar on the footing that the discontinuance
against the trustees which came about from
the plaintiff taking judgment against the
principal defendant without having had the
trustee charged was wiped out.
We agree
with counsel for the trustee in bankruptcy
that the trustee attachment is not continued
in effect by force of R. L. c. 193, § 20. That
deals with the continuance of attachments
which expire within a limited time after
a general judgment has been taken. The fact
that an attachment by way of trustee process
is not included within those specified in R. L.
c. 193, § 20, does not stand in the way of
the conclusion being reached which we have
reached by force of R. L. c. 193, § 14. There
was no occasion for including an attachment
by the trustee process in R. L. c. 193, § 20.

[5] 3. We are of opinion that the judge was wrong in refusing to rule that on all the evidence the plaintiff was not entitled to the entry of the special judgment as asked for.

What the plaintiff asked for was a special judgment under R. L. c. 177, § 25. In the words of the original act (St. 1875, c. 68, § 1, not changed by the re-enactment) the case where the court is authorized to enter a special judgment under what is now R. L. c. | 177, § 25, is a case where "the defendant

[ocr errors]

dissolves an attachment made in said suit by giving a bond as provided by the statutes of this commonwealth." It is conceded by the plaintiff on the authority of Atwood v. West Roxbury Co-op. Bank, 156 Mass. 166, 30 N. E. 558, that the bond given in the case at bar was not a bond which dissolved the attachment. What the plaintiff seeks to obtain by getting the special judg[2-4] 2. We are of opinion that the judgement (asked for by him) is to hold the surewas justified in ordering the trustees to be ties on the bond here in question as a comcharged. mon-law bond. But R. L. c. 177, § 25, does not give power to the court to enter a special judgment to hold sureties on a common-law bond. The case at bar is not a case in which the court had power to make the special judgment which the plaintiff asked for. The exception taken to the refusal to give this instruction must be sustained.

By taking a general judgment against the principal defendant without having had the trustees charged the plaintiff discontinued against the trustees. Jarvis v. Mitchell, 99 Mass. 530; Dalton-Ingersoll Co. v. Andrew J. Fiske et al., 175 Mass. 15, 55 N. E. 468. The summary right to vacate a judgment given to the court originally by St. 1875, c. 33, now R. L. c. 193, § 14, provides that upon vacating the judgment the court can "dispose of the case as if such judgment had not been entered." The provision that upon vacating the judgment the court can "dispose of the case as if such judgment had not been entered"

The result is that the exception must be sustained which was taken to the request to rule that the court had no power to make the special judgment asked for by the plaintiff and that the other two exceptions must be overruled.

So ordered.

(226 Mass. 30)

report from superior court. Demurrer of deAMERICAN TRUST CO. v. HOLTSINGER fendants overruled. et al.

[blocks in formation]

3. PLEDGES 58(1) POSIT.

[blocks in formation]

Where a certificate of deposit of mortgage bonds was pledged as collateral for a note, the situs of the right under the certificate to compel performance of its obligations was with the pledgee, because such performance is conditional upon the surrender of the certificates of deposit, and the presence of the certificates gives value to the right.

[Ed. Note.-For other cases, see Pledges, Cent. Dig. 88 186-189; Dec. Dig. 58(1).]

4. PLEDGES 57-SALE-STATUTE.

In view of Rev. Laws, c. 198, § 10, providing that the two preceding sections, requiring a notice to the pledgor of personal property of an intention to sell, and for the sale of the pledge at public auction, shall not limit the right of the pledgee to avail himself of other rights, and that such a sale would not be reasonably unimpeachable, suit in equity to foreclose under Rev. Laws, c. 159, § 1, is available.

[Ed. Note.-For other cases, see Pledges, Cent. Dig. §§ 184, 185; Dec. Dig.

57.]

5. COURTS 19 JURISDICTION SURE OF PLEDGE.

FORECLO

Where a certificate of deposit of mortgage bonds was pledged as collateral, a court of equity had jurisdiction to decree foreclosure, although the res was without the commonwealth, since such decree only sold the equitable right of the pledgor through the sale of the tangible indicia of that right within the commonwealth, and did not attempt to direct the performance of the obligation.

[Ed. Note. For other cases, see Courts, Cent. Dig. §§ 47-52; Dec. Dig. 19.] 6. EQUITY 362-BILL-RELIEF.

A bill in equity should not be dismissed because it asks for more relief than the court on final hearing may adjudge the plaintiff entitled to.

[Ed. Note.-For other cases, see Equity, Cent. Dig. 88 758-761; Dec. Dig. 362.]

Weld A. Rollins, of Boston, for plaintiff. Frank L. Simpson, of Boston, for defendants.

PIERCE, J. The several certificates of deposit issued by the First Savings & Trust Company of Tampa to the depositors of bonds, deposited in pursuance of an agree ment and plan for the reorganization of the Wauchula Manufacturing & Timber Company, provided that "upon said reorganization being completed" the depositor "or its assigns shall be entitled to the securities issued according to, and in pursuance of, said plan, upon return of this certificate duly indorsed by the holder thereof or its assignee." Under the plan:

"The committee is hereby vested, under the terms of this agreement, as trustee of an express trust, with the legal title to all the bonds

which may be deposited under this agreement, and the depositors thereof hereby assign and transfer the same to the committee." "Said reorganization committee will cause

* ✦ issues of bonds of said new corporation to be disposed of as follows: (a) To the holders of the present outstanding first mortgage bonds of the Wauchula Manufacturing & Timber Company a like amount of said first mortgage bonds of said new corporation to be formed."

The plan does not contemplate the return of the deposited bonds or mark any period of time for the duration of the reorganization committee or the termination of the trust.

[1] On deposit of the bonds and the transfer of the legal title thereto to the reorganization committee as trustee, the holder and

depositor acquired in exchange a negotiable certificate of deposit, one of the incidents of which was a right to compel performance in equity of the requirements of the terms of

the certificate.

One of these terms was the delivery at the appropriate time to the certificate holders of certain securities of the reorganized company. Montgomery v. McDermott, 103 Fed. 801, 806, 43 C. C. A. 348.

[2, 3] It is plain that it was the intention that these certificates of deposit, when pledged as collateral security for the defendants' promissory note, should create an equitable pledge of the owner's right in equity to compel the performance of the obligation arising And it is equally out of the certificate. plain that the pledge was not restricted to the legal interest of the pledgor in the certificates as chattels. Pierce v. Boston Five

Cents Savs. Bank, 129 Mass. 425, 37 Am. Rep. 371; Taft v. Bowker, 132 Mass. 277. The situs of this right is with the pledgee because the performance of the obligation is conditional on the surrender of the certificates of deposit, and because the presence of the cer

Report from Superior Court, Suffolk Coun- tificates gave value to the right. ty; Chas. F. Jenney, Judge.

[4] The facts of this case do not require Suit by the American Trust Company a decision whether the courts of equity of against Eugene Holtsinger and others. On this commonwealth under R. L. c. 159, § 1,

Cent. Dig. § 3; Dec. Dig. 4.]
[Ed. Note.-For other cases, see Trade Unions,

3. TRADE UNIONS 4-EXPULSION.
Upon the expulsion of a member from a vol-
untary association or trade union, such mem-
ber's interest in the funds and property of the
association ended, and he was no longer amen-
able to the penal code of such association, and
after his expulsion has a right to sell and dis-
pose of his labor according to his own will,
unrestrained and unaffected by the rules and
agreements of the association.
Cent. Dig. § 3; Dec. Dig. 4.]
[Ed. Note. For other cases, see Trade Unions,

will assume jurisdiction to foreclose a pledge issue to restrain the association from excluding of personal property according to the general him from membership and other access to meetings. principles of equity jurisprudence or whether they will refuse to do so, in the absence of special circumstances, where there is a statutory remedy which is plain, adequate and complete. It is provided expressly by R. L. c. 198, § 10, that the two preceding sections shall not limit the right of the pledgee to avail himself of other rights. See Wheeler v. Newbould, 16 N. Y. 392, 396, 397; White River Savs. Bank v. Capital Savs. Bank & Trust Co., 77 Vt. 123, 131, 59 Atl. 197, 107 Am. St. Rep. 754; Morrissey V. Broomal, 37 Neb. 766, 56 N. W. 383; Montgomery v. McDermott, 103 Fed. 801, 806, 43 4. TRADE UNIONS 4-EXPULSION OF MEMC. C. A. 348. The power of sale contained in The expulsion of a member of a voluntary asthe collateral note, if exercised, would not sociation or trade union which had a peace pact carry with it that certitude of a reasonably or agreement with the employer did not termiunimpeachable and indefeasible title that in-nate the member's employment, and his continuheres as an attribute of a judicial sale, or is imputed to the conclusiveness of a judicial decree.

We are of opinion that the plaintiff had the right to resort to a court of equity upon the failure of the maker of the note to pay the interest as it became due, notwithstanding the fact that the collateral note contains a power of sale of the security. 2 Kent's Com. (4th Ed.) 581, 582, 583.

[5] The contention that the court is without jurisdiction because the res is without the commonwealth, would be unanswerable if the decree of foreclosure attempted to control or to direct the performance of the obligation, res, or did more than to sell the equitable right of the pledgor through the sale of the tangible indicia of that right within the commonwealth. See Donohoe v. Gamble, 38 Cal. 340, 354, 99 Am. Dec. 399.

[6] The bill should not be dismissed because it asks for more relief than the court on final hearing may adjudge the plaintiff entitled to. Nudd v. Powers, 136 Mass. 273; Ginn v. Almy, 212 Mass. 486, 493, 99 N. E.

276.

Demurrer overruled.

(226 Mass. 21)

SHINSKY v. TRACEY et al.

BERS.

ance at work until retired through the efforts of the association held not to constitute a breach of his peace pact or agreement for which the member would be liable to the association in damages.

[Ed. Note. For other cases, see Trade Unions, Cent. Dig. § 3; Dec. Dig. 4.] 5. TORTS 10-TRADE UNIONS-BOYCOTT.

Where a voluntary association or trade union expelled a member for violation of his obligations, and thereafter prevented his employment by other employers, not to conserve and promote his welfare or the welfare of his employers through the offer of friendly advice, and not for the purpose of protecting their own members in obtaining sufficient work, but for the purpose of compelling discipline in their own ranks and of making an example of the member, their conduct was a boycott, for which the plaintiff could recover damages.

[Ed. Note.-For other cases, see Torts, Cent. Dig. § 10; Dec. Dig. 10.]

6. TORTS 10-INTERFERENCE WITH EMPLOYMENT-BOYCOTT.

equal with the right to acquire property by conThe right to acquire property by labor is cotract, as is the right to sell such labor, and it is an actionable wrong where the right of one to sell his labor as a means of subsistence has been taken away or impaired by an intentional boy

cott.

[Ed. Note.-For other cases, see Torts, Cent. Dig. § 10; Dec. Dig. 10.]

Appeal from Superior Court, Essex County; John D. McLaughlin, Judge.

Action by David Shinsky against Michael Tracey and others. From a decree of dis

(Supreme Judicial Court of Massachusetts. Es- missal from the superior court, the plaintiff

[blocks in formation]

1. TRADE UNIONS 4 AND DISCIPLINE.

One who becomes a member of a trade union, a voluntary association, is bound by its rules and subject to its discipline.

[Ed. Note. For other cases, see Trade Unions, Cent. Dig. § 3; Dec. Dig. 4.]

2. TRADE UNIONS 4-EXPULSION OF MEM

BERS INJUNCTION.

appeals. Reversed, and decree for plaintiff on the master's report ordered.

H. D. Linscott, of Lyun, for appellant. Fredk. W. Mansfield, of Boston, for 'appellees.

BRALEY, J. [1-3] By becoming a member of the voluntary association known as "the United Shoe Workers of America" the plaintiff engaged to be bound by its rules and subWhere a member of a trade union, a volun- jected himself to its discipline. Correia v. tary association, has been tried by the associa- Supreme Lodge of the Portuguese Fraternity tion for infraction of his obligations in accordance with the constitution, his expulsion is not of the United States of America, 218 Mass. reviewable by the courts, and injunction cannot 305, 105 N. E. 977; Carter v. Papineau, 222

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

« PreviousContinue »