Antoine v. Commonwealth Trust Co.

• Decision Date: 14 February 1929
• Citation: 165 N.E. 12,266 Mass. 202
• Parties: ANTOINE v. COMMONWEALTH TRUST CO. et al. SAME v. ATLANTIC NAT. BANK et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

266 Mass. 202

165 N.E. 12

ANTOINE

v.COMMONWEALTH TRUST CO. et al.

SAME

v.ATLANTIC NAT. BANK et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 14, 1929.

Exceptions from Superior Court, Suffolk County; Robert F. Raymond, Judge.

Actions by Frederick S. Antoine, assignee for the benefit of creditors of the Baker & Cassidy Company, against the Commonwealth Trust Company and others and against the Atlantic National Bank and others. Verdicts for defendants, and plaintiff brings exceptions. Exceptions overruled.

J. B. Jacobs, of Boston, for plaintiff.

J. W. Worthen, of Boston, for defendants.

CROSBY, J.

These are actions of tort to recover for the alleged wrongful and negligent foreclosure of a chattel mortgage,and for an alleged conspiracy entered into by the defendants to defraud the plaintiff.

On March 18, 1921, Baker & Cassidy Company, a corporation engaged in the business of manufacturing and selling finished lumber for the interior of buildings, gave to the defendant Commonwealth Trust Company its note for $5,500, payable on demand, and secured by a mortgage of machinery and equipment. On January 13, 1923, the corporation made an assignment to the plaintiff for the benefit of its creditors. The plaintiff was a public accountant who had balanced the books of the corporation and had prepared its tax returns, but so far as appears was not familiar with the value of machinery like that owned and used in the business of the corporation. Before the assignment $1,000 had been paid on the principal of the note, and the interest was paid to May 1, 1923. After the assignment the plaintiff, as assignee, carried on the business and paid a dividend of about ten per cent, amounting to about $2,000, to the original creditors of the company, notwithstanding the fact that he owed $4,000 for debts which he had contracted as assignee. The officers of the Commonwealth Trust Company were dissatisfied with the plaintiff's management, and decided to foreclose the mortgage. There was evidence that the plaintiff had been repeatedly requested to pay the note; that as no part of the principal was paid by him foreclosure proceedings were instituted; and that thereafter the sale had been postoned twice at his request.

The evidence tended to show that the plaintiff had endeavored to sell the business as a a broker, by placing it in the hands of a broker, by advertising it in two Boston newspapers, and by interviewing a large number of prospective purchasers. His efforts in this direction continued for two months before the auction sale took place, but he received no offers for the property.

On June 17, 1923, notice of the foreclosure sale to be held on June 20 at eleven o'clock in the forenoon was printed in a newspaper published in Boston. On June 20, 1923, at the appointed time and place the sale by auction began. There was evidence that there were from fifty to seventy-five persons present; that for at least fifteen minutes after the sale started the auctioneer endeavored to sell the property as a whole, but received no bids therefor; that he then announced he would sell the various articles described in the mortgage separately; and that he secured bids for two machines, one of $125 and one of $50. There was then an intermission lasting until about a quarter to one, during which the trust company's attorney, the auctioneer and the defendant Cassidy, who was one of the principal stockholders of Baker & Cassidy Company, were in the office of the company together. At this time the attorney talked over the telephone with the defendant Goddard, who was the manager of a branch of the defendant trust company, and thereafter reported that Goddard said he was satisfied that they could not get a fair price ‘by selling the stock at picemeal.’

Counsel for the trust company then announced to all present at the auction that the bank would ‘grant terms' instead of requiring cash. The plaintiff's counsel objected to the sale proceeding further on the ground that a number of persons who had been present had left. The auctioneer announced that he was going to sell all the property covered by the mortgage for a lump sum; that he had a did of $5,250 for the machinery and equipment covered by the mortgage. As there were no other bidders the sale was made on the bid as stated. The auctioneer at first refused to reveal the name of such bidder, but at the request of the plaintiff's attorney said that it was the defendant Cassidy. There was evidence that the plaintiff's counsel also protested against the sale at the time the auctioneer announced the bid of $5,250, on the ground that because of the delay many persons had left, and he suggested that the sale be postponed and again advertised; that the sale had been postponed at 11:30 or 11:45 a. m., and resumed shortly before one o'clock, The Commonwealth Trust Company, after the foreclosure sale and previous to the commencement of these actions, became consolidated with the Atlantic National Bank, one of the defendants in the second action.

It is not contended that the mortgage note was not overdue,and unless there was some illegality in the foreclosure proceedings these actions cannot be maintained. If the acts of the defendants in the foreclosure proceedings were not wrongful, the allegations of conspiracy do not wrongful, the allegations Farquhar v. New England Trust Co., 261 Mass. 209, 158...