Anglo-American Direct Tea Trading Co. v. Seward

• Decision Date: 26 May 1936
• Citation: 294 Mass. 349,2 N.E.2d 448
• Parties: ANGLO-AMERICAN DIRECT TEA TRADING CO. v. SEWARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

294 Mass. 349

2 N.E.2d 448

ANGLO-AMERICAN DIRECT TEA TRADING CO. v. SEWARD.

Supreme Judicial Court of Massachusetts, Middlesex.

May 26, 1936

Exceptions from Superior Court, Middlesex County; Collins, Judge.

Action of contract in the superior court by the Anglo-American Direct Tea Trading Company against Evelyn Ide Seward administratrix de bonis non cum testamento annexo, tried to the court without a jury. Finding for the plaintiff in the sum of $330.29, and the defendant brings exceptions to the refusal of the trial judge to rule as requested.

Exceptions overruled.

F. W Mowatt, of Boston, for plaintiff.

F. G Arey, and K. F. Gesmer, both of Boston, for defendant.

FIELD Justice.

This action of contract on an account annexed for goods sold and delivered was tried before a judge sitting without a jury. There was a finding for the plaintiff. The case comes before us on the defendant's exceptions to the refusal of the judge to rule as requested.

The defendant is the administratrix de bonis non with the will annexed of Charles M. Ide. He was one of the executors of the will of William T. Abbott. Those executors were authorized by decree of the probate court to carry on the business of the deceased, which was conducted under the name of William T. Abbott and Company. This action is brought to recover the price of tea sold and delivered by the plaintiff to William T. Abbott and Company while the business was being carried on by the executors of William T. Abbott. The questions raised by the exceptions and argued by the defendant relate to the individual liability of Charles M. Ide.

The judge found specifically that a ‘ contract was entered into by the executors of the estate of William T. Abbott through their agent to take the tea’ referred to in the declaration. There is no dispute that ‘ all the tea was purchased of the plaintiff and used by the William T. Abbott & Company to fill orders of their customers while the business was being operated by the executors of William T. Abbott under license of court, and was not paid for. There was evidence tending to show that the plaintiff had knowledge of the bad financial condition of William T. Abbott & Company prior to the date of the sale of the goods; knew that the executors, Mrs. William T. Abbott and Charles M. Ide, were acting under an order of court; knew that at the death of William T. Abbott there was money due it from William T. Abbott & Company and, further, knew that the executors were operating the business in an attempt to sell it as a going business or to liquidate it; and knew also that the estate of William T. Abbott was insolvent and placed this account in the hands of its attorney. The plaintiff sold goods to the representatives of William T. Abbott & Company after it learned that the estate of William T. Abbott was insolvent.’ There was also evidence tending to show ‘ that the beneficiaries of the estate of William T. Abbott as well as the executors agreed that the business should be operated by the executors and they signed the petition in the Probate Court asking the court to allow the executors to operate,’ and to show ‘ that the executors were not negligent in the way they carried on the business,’ but that they ‘ conducted themselves faithfully, exercised sound discretion and acted in the conduct of the business as men of prudence, discretion, and intelligence managed their own affairs.’

The defendant contends that as matter of law (a) a finding ‘ against Charles M. Ide as executor’ does not make him liable personally, (b) the plaintiff in all the circumstances is estopped from setting up its claim and (c) there was not sufficient consideration between Charles M. Ide and the plaintiff.

These contentions cannot be sustained.

1. The defendant's first contention is in substance that Charles M. Ide-one of the executors of the will of William T Abbott-as matter of law was not liable personally on a contract found by the judge to have been ‘ entered into by the executors.’ But an executor carrying on the business of his testator under authority of a decree of the probate court (G.L. [Ter.Ed.] c. 195, § 7) is liable personally to a third person on a contract made with him by the executor in carrying on such business, at least in the absence of an agreement, express or implied, with such third person excluding personal liability of the executor. See Luscomb v. Ballard, 5 Gray, 403, 405, 66 Am.Dec. 374; Rosenthal v. Schwartz, 214 Mass. 371, 373, 101 N.E. 1070. This is the rule applicable generally to trustees and like fiduciaries. Carr v. Leahy, 217 Mass. 438, 440, 105 N.E. 445; Larson v. Sylvester, 282 Mass. 352, 357, 185 N.E. 44.And it is not limited to such fiduciaries acting without authority. Mason v. Pomeroy, 151 Mass. 164, 167, 24 N.E. 202,7 L.R.A. 771. Absence of authority in an executor or trustee to contract might leave the person contracting with him to recourse solely against such executor or trustee personally. King v. Stowell, 211 Mass. 246, 250, 98 N.E. 91; Hines v. Levers & Sargent Co., 226 Mass. 214, 217, 115 N.E. 252. But authority in such e...