Barry v. Covich
| Decision Date | 04 March 1955 |
| Citation | 332 Mass. 338,124 N.E.2d 921 |
| Parties | Edward BARRY et al. v. Sidney COVICH et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Frank I. Rose, Boston, for plaintiff.
Edward O. Proctor, Boston, Harold M. Linsky, Boston, with him for defendants.
Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.
This is an appeal from a final decree dismissing a bill in equity brought by ten plaintiffs alleging that they are members of the Blue Hill Golf Club, a nonprofit, unincorporated association of approximately three hundred fifty members, that they comprise a group known as the activities committee of said club, and that they bring this suit in a representative capacity in behalf of themselves and the remaining members of said club to enforce a constructive trust against the defendants upon a certain parcel of land.
The judge made full and complete findings of fact and the defendants in accordance with Rule 5 of the Rules for the Regulation of Practice before the Full Court (1952), 328 Mass. 696, have supplemented the record by a transcript of the evidence.
The Blue Hill Land Company, Inc., a corporation, hereinafter referred to as the land company, owned a parcel of about two hundred fifty-five acres of land in Canton upon which were located a golf course, a sand or gravel pit, and a tract of undeveloped land suitable for about twenty or more house lots. The golf course contained about one half of the total acreage. One Clauson owned almost one half of all the shares of the land company. The Blue Hill Golf Club Company was wholly owned by the land company and was the operating company of the golf course. Persons desiring to play golf on this course filed an application for membership, paid an initiation fee and annual dues to the golf company, and secured no interest in the golf company but only a license to play on the golf course and to use the facilities of the club house, and are hereinafter called playing members. There were different classes of playing members paying annual dues at different rates. There were but two lists of the playing members one of which was held by an employee of the golf company and the other by its printer.
Clauson in 1951 called a meeting of the playing members and suggested the formation of a committee to regulate conduct on the golf course. Such a committee was subsequently formed, together with subcommittees, and through 1952 it conducted socials, dances, and golf tournaments, and formulated rules in using the golf course. A woman's committee was formed in 1952. The playing members had no other officers than these committees. In the spring of 1953 a meeting of the playing members was called, and an employee of the golf company who had a list of these members gave them notice. At this meeting an activities committee of ten men (the plaintiffs) and a woman, who had been made chairman of the women's committee, was chosen. As a result of a vote taken at this meeting bylaws referred to as policies of the association were subsequently drafted and sent to the members.
On Gorney in the spring or summer of 1952 together with four or five others negotiated with the land company for the purchase of the property. The defendant Corkin, who was related to Gorney by marriage, examined the property with Gorney. The latter asked Corkin if he would be interested in buying the remainder of the land outside of the golf course. Corkin replied that that would leave twenty or more house lots worth about $1,000 a lot and the sand and gravel pit, the value of which he did not know, and advised Gorney not to purchase the property. Corkin at that time was not acting as Gorney's agent, was not employed by him, and received no confidential information from him. Gorney and his group in the summer of 1952 refused an offer of the land company to sell for $125,000.
Gorney in January 1953, wrote Cappers, the treasurer of the golf company, stating that a number of the playing members had spoken to him (Gorney) about the possibility of purchasing the property for the membership and inquiring whether the land company would sell it for that purpose. Gorney together with one Weinberg, also a playing member, arranged for a meeting of the leaders of the various groups of playing members at Gorney's home on February 8, 1953. Sixteen playing members attended and one who was not such a member who desired to join a membership owned club and who was well informed about golf courses. The defendant Covich, although a playing member but not invited, attended and participated in the discussion. Gorney presided and at the opening of the meeting stated that it was for the purpose of acquiring the premises of the land company for a membership owned golf club and that if anyone objected he should leave. No one left. Gorney requested that whatever happened at the meeting should be kept secret. Gorney set forth the advantages of this property and of a golf club owned by the members. He said the sand and gravel pit could first be sold, that the house lots could be sold for $30,000, that the entire parcel might be bought for $125,000, and that it could be definitely purchased for $150,000. He outline a plan for obtaining the purchase price by which two hundred fifty members would each purchase a share for $500 or the money be secured by raising a mortgage or some of the members might advance the money. He suggested that, if the property could not be purchased for $125,000, negotiations be continued until after Labor Day when all the dues had been paid, and that an offer of $150,000 be made. A negotiating committee was selected and instructed to offer $115,000 and to go as high as $125,000 and after Labor Day, if the latter offer was not accepted, to go to $150,000. One Coleman told a group including Covich that Clauson had told him in strict confidence that, while he was asking $200,000 for the property, he would sell it for $150,000. Covich before he left the meeting told Gorney that he could not attend the next meeting but he would have his accountant, one Ferngold, represent him; and he told Gorney to try to purchase the property and said, 'I'm with you whatever the members do.' The negotiating committee made a report at a meeting held at Gorney's home on February 15, 1953, that Cappers, treasurer of the golf company had rejected the offer of $115,000 and was asking $200,000. Ferngold attended this second meeting at Gorney's home at which about twenty members were present. At the opening of this meeting Gorney warned everyone to 'Keep everything as confidential as possible.' At various times during the summer of 1953 Gorney and Coleman saw Clauson concerning the property but no meeting of the playing members was called prior to October 8, 1953.
Covich and Corkin...
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