Barry v. New York Holding & Constr. Co.
| Decision Date | 24 January 1917 |
| Citation | 114 N.E. 953,226 Mass. 14 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | BARRY v. NEW YORK HOLDING & CONSTRUCTION CO. et al. |
OPINION TEXT STARTS HERE
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.
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.
The facts out of which these exceptions grew are as follows: In November, 1913, the 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 aslo 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 was written) above it. After this bond had 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 & Construction 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 exceeding the value of the property in their hands, or so much thereof as will satisfy the amount that may be recovered by said plaintiff, 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. 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 auditor found that during the period covered by the first contract the plaintiff had secured contracts under which the defendant had received from $51,000 to $52,000. He further found that the method of conducting business 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 right in refusing to give the first ruling asked for by the trustee in bankruptcy. The plaintiff 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....
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