Bauer v. International Waste Co.

• Decision Date: 26 February 1909
• Citation: 87 N.E. 637,201 Mass. 197
• Parties: BAUER v. INTERNATIONAL WASTE CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

201 Mass. 197

87 N.E. 637

BAUER v. INTERNATIONAL WASTE CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1909

COUNSEL

E. F McClennen and A. L. Fish, for appellants.

V. J Loring and J. H. McDonough, for appellee.

OPINION

RUGG J.

This is a bill in equity, by which the plaintiff seeks to recover from the respondents the International Waste Company, Samuel E. Lichtenhein and Edward Lichtenhein money alleged to be due under two contracts, and to enjoin the respondent McPherson from rendering a decision as arbitrator, and to compel him to turn over certain funds, checks or vouchers actually held by him under said agreements. On August 22, 1904, the plaintiff the respondent company and Samuel E. Lichtenhein made a contract, by which the former entered the employ of said company as manager for a term of years and turned over to it certain contracts held by him. On November 2, 1904, the same three parties executed an agreement, canceling the earlier one, and the plaintiff became bound to sail for Europe not later than December 1, 1904, to remain away from America for at least three years, and during said time not to 'engage, directly or indirectly, in the business of buying cotton waste from any cotton mills in any part of the United States or Canada, or be interested directly or indirectly in any such business, including any interest as officer, employé or stockholder in any corporation carrying on said business in any part of the United States or Canada.' Certain monthly payments were to be made to the plaintiff so long as he abided by this agreement until the full sum of $6,300 was paid. The performance of this contract by the company was guaranteed by Samuel E. Lichtenhein. On November 14, 1904, all the parties to this suit made a third contract, by which the plaintiff discharged the said company and Samuel E. Lichtenhein from all liability under the contract of August 22, 1904, and the defendant company, Samuel E. Lichtenhein, Edward Lichtenhein and the Montreal Cotton & Wool Waste Company (which was a designation under which said S.E. Lichtenhein carried on business) agreed to pay to the respondent McPherson or such financial institution as might be designated the sum of $6,300 in installments so long 'as said McPherson shall rule and decide that said Bauer is living up to and performing the covenants as set out in said contract of November 2, 1904, and the decision of said McPherson shall be final upon the question of said payments.' On the 14th of December, 1905, the respondent McPherson sent a letter to all the other respondents, in which he undertook to 'absolve' them from further payments under the agreements of November 2 and 14, 1904, and stated: 'I shall at once notify Mr. Bauer and give him a chance to be heard, * * * and will then render my decision as to the final determination or continuation of the several agreements between you.' The case was heard before a justice of the superior court, who found that in May, 1905, the plaintiff 'entered the employ of W. Wolf & Sons, a partnership, of Stuttgart, Germany, and opened for them a branch place of business at Oldham, England, and subsequently removed to Manchester. They were dealers in cotton waste and had a branch house also at Boston, in this commonwealth. I find on the evidence that Bauer personally bought no cotton waste since he left the United States and made no sales but one to a dealer or manufacturer in Fall River and another in Pawtucket; both sales of waste bought in Europe. Wolf & Sons, for whose Manchester branch he was manager, upon the evidence did not buy any cotton waste from mills in the United States or Canada, but bought from dealers.' He also found that no final decision was made by McPherson as arbitrator prior to the filing of this bill, and entered a final decree for the petitioner.

The defendants first argue that the plaintiff had a plain, adequate and complete remedy at law, and therefore cannot maintain his bill. All the defendants save the International Waste Company answered without filing any demurrer and went to trial on the merits. This was a waiver of any right to raise such objection. Driscoll v. Smith, 184 Mass. 221, 68 N.E. 210. The International Waste Company filed a demurrer but did not appeal from the order of the court overruling its demurrer. If it be assumed in its favor, however, that the question is open to it, the averments of the bill are sufficient to show ground for equitable relief. It was alleged that McPherson held funds and also a resignation of the plaintiff, his release and a share of his stock in the respondent company. McPherson's letter of December 14, 1905, directed to the other defendants, which stated that a copy would be sent to the plaintiff, also asserted that he would hold the checks in trust which had been sent by the other defendants to him, and that they would draw the low bank rate of interest. At some time he had held the other documents described. Apparently his attitude was such that he would turn these over to the several respondents, or some of them, and thereby it was possible that irreparable injury might be done to the plaintiff. There was the further important allegation that the respondent McPherson was illegally and without justification about to proceed to render an award under the terms of the contract. While relief in some form would undoubtedly have been afforded to the plaintiff at law against such unwarranted action, yet it cannot be said that at law there was relief 'as practical and as efficient to the ends of justice and its prompt administration as the remedy in equity.' Rice v. Winslow, 182 Mass. 273, 65 N.E. 366. Without discussing the matter further, it is plain that the bill sets forth a cause for equitable relief.

There is no question as to the sufficiency of the evidence to support the findings made by the trial court. The evidence was substantially all one way. It fails utterly to show that there was...