Bradley v. Borden

• Citation: 112 N.E. 416,223 Mass. 575
• Parties: BRADLEY et al. v. BORDEN et al.
• Decision Date: 21 April 1916
• Court: United States State Supreme Judicial Court of Massachusetts

223 Mass. 575

112 N.E. 416

BRADLEY et al.

v.BORDEN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 21, 1916.

Case Reserved from Supreme Judicial Court, Suffolk County.

Suit by George F. Bradley and others against Frederick W. Borden and others. On reservation for the determination of the full court. Decree in accordance with opinion.

H. T. Richardson, of Boston, for plaintiffs.

James E. Cotter and Jos. P. Fagan, both of Boston, for defendant Federal Trust Co.

Blodgett, Jones, burnham & Bingham and Addison C. Burnham, all of Boston, for defendant First Nat. Bank of Boston.

Arthur E. Burr, of Boston, Wm. R. Tillinghast, of Providence, R. I., and Lee M. Friedman, of Boston, for certain respondents.

E. M. Schwarzenberg and Walter N. Buffum, both of Boston, for Albert E. Gladwin and others.

PIERCE, J.

This case, by consent of parties, was referred to the master without objection to or appeal from the terms of the order, which read:

‘And now it is ordered that the above-entitled cause be referred to Walter F. Frederick, Esq., as master, to hear the parties and their evidence, to find the facts, decide the case and report thereon to the court.’

The rule in the cross-bill read:

‘On the above-entitled cause it is ordered that the cross-bill and pleadings therein be referred to Walter F. Frederick, Esq., as master, to hear the parties and their evidence, to find the facts, and report the same to the court.’

As regards the first rule, the master in his report states:

‘The scope of the rule has been questioned by the parties and I have interpreted the same to direct me to determine matters of law as well as of fact and to make such findings as would have been made by a justice of this court had the case been heard by the court.’

Upon the coming in of the report the plaintiffs moved to recommit:

‘(a) Because master has not interpreted correctly the rule to him as master, and has also exceeded the powers delegated to him under said rule.’

‘(b) Because the master has neither authority to determine matters of law nor to make such findings as would have been made by a justice of this court had the case been heard by the court.’

‘(c) Because master should have heard the parties and their evidence and reported the facts to the court and should not and is not justified in making rulings of law.’

‘(d) Because master has exceeded his authority as such in making rulings of law.’

‘(e) Because master's report should be reformed or reconstructedomitting all rulings of law made by him, because he had no authority or right to make such rulings.’

This motion was denied and the plaintiffs appealed.

The same question of law in identical language is presented by objections and exceptions duly taken and filed.

The plaintiffs argue that ‘a master has no jurisdictional authority to make rulings of law even if the court attempts to clothe him with such authority,’ and cite New England Foundation Co. v. Reed, 209 Mass. 556, 95 N. E. 935;Adams v. Young, 200 Mass. 588, 590, 86 N. E. 942;Clark v. Seagraves, 186 Mass. 430, 435, 71 N. E. 813. In no one of these cases did the rule direct the master to do more than to hear the parties, to take the evidence and to report his findings of fact. They are authority for the position that the power of the master as well as its limitation is to be found in the terms of the rule and consequently that a direction to hear evidence and report facts excludes by necessary implication the right to make rulings of law. The court with or without the consent of parties has authority to have the assistance of a master in the determination of any question of law or of fact necessary or useful to the decision of any pending issue. The right to have the opinion of a master upon conclusions of fact arrived at upon consideration of offered and received evidence, necessarily carries with it the right to know upon what theory of law the master acted in arriving at any conclusion of fact or of law to the end that the court may be enabled to determine whether the report shall be accepted or rejected or the whole matter of reference be recommitted to the same or to another master for further hearing upon direction as to the law to be followed. The report of rulings of law is advisory while findings of fact in the absence of a report of all the material evidence have the weight of a special verdict of a jury. The direction to report findings of fact and rulings of law is not uncommon and the right of the court so to order has so far as appears by any decision hitherto stood unquestioned in this commonwealth. See Moore v. Dick, 187 Mass. 207, 72 N. E. 967;Warfield v. Adams, 215 Mass. 506, 102 N. E. 706. Cases like Clark v. Seagraves, 186 Mass. 430, 71 N. E. 813, and Hittinger Fruit Co. v. Cambridge, 218 Mass. 220, 105 N. E. 868, where the direction was to ‘report such facts and questions of law as either party may request,’ are distinguishable because of the limitation of the master's authority contained in the rule. Without consent of parties the court has no authority to refer the entire decision of the whole case, but with consent such has long been the practice in equity and at law. Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355, 32 L. Ed. 764;Davis v. Schwartz, 155 U. S. 631, 636, 15 Sup. Ct. 237, 39 L. Ed. 289;Gardner v. Boston, 120 Mass. 266;Electric Supply Co. v. Conway Elec. Lt. & Power Co., 186 Mass. 449, 451, 71 N. E. 983.

The master's statement that the rule conferred authority ‘to make such findings as would have been made by a justice of this court’ is inaccurate when taken apart from its connection with other parts of the rule, but so read and limited is in essence true.

In any event no harm resulted and the question of the degree of the judicial function of the master does not require decision.

The question of jurisdiction under the facts is not open; the refusal to recommit as a matter of discretion or as a matter of law was correct and should be affirmed, and exceptions overruled.

The plaintiffs contend, that the clause in paragraph (3) of the agreement reading, ‘and also for the purpose of purchasing remaining stock of said Butte Central Copper Company,’ should be read in connection with and as a part of the clause that directly follows it, first striking out the semicolon, and then inserting before the word ‘of’ the copulative word ‘and,’ or inserting before the word ‘providing’ either the word ‘thereby’ or ‘thus' after striking out the semicolon and the word ‘of.’ Thus amended the combined clauses would read, ‘and also for the purpose of purchasing remaining stock of said Butte Central Copper Company,’ ‘and of’, ‘thereby’ or ‘thus' providing additional working capital for continuing and developing business of said Butte Central Copper Company and of developing the property owned and controlled by said company, or which may be at any time acquired by it.

The plaintiffs also assert that there was no ‘remaining stock’ after the acquisition of all the treasury stock (125,000 shares) of the company. This construction would leave the clause without force, and would limit the words to description of stock owned by the company after it had disposed of all that it had-a manifest absurdity. The words ‘remaining stock,’ under the circumstance, should be read ‘remaining outstanding stock,’ and so read can be given effect and are consistent with the gift or sale of the Davidson stock to the company (5,000 shares) which was needed to make the holding of the syndicate 52 per cent. of the capital stock of the Butte Central Copper Company.

Should the clauses be combined and interpreted as the plaintiffs argue ought to be done, the words ‘additional working capital’ would naturally mean the cash paid to the copper company by the syndicate, for the 130,000 shares of its stock.

The circumstances existing at the time of the making of the agreement do not require the expunging of the punctuation or the addition of words to the agreement, to make certain the intention of the parties to it.

As stated in the agreement (3) the syndicate was formed for three purposes:

(a) ‘For the purpose of acquiring from the International Underwriting Company their rights in 52 per cent. of the capital stock of the Butte Central Copper Company under a contract held by the International Underwriting Company for the purchase of the stock.’

(b) ‘And also for the purpose of purchasing remaining stock of said Butte Central Copper Company.’

(c) ‘Of providing additional working capital for continuing and developing the business of the Butte Central Copper Company and of developing the property owned and controlled by said company or which may be at any time acquired by it.’

That something more than mere stock control of the Butte Central Copper Company was contemplated by the syndicate subscribers, is made clear by the provision for a board of managers of ‘not more than fifteen,’ with officers, executive committee and power to expend money and make contracts,' as also by the provision (8) that ‘nothing contained in this agreement or otherwise shall constitute the subscribers partners with or agents for one another, or with or for the syndicate managers, or render them liable to contribute in any event more than their individual subscription’; as also by the provision (11), that ‘the syndicate managers shall have the sole direction and management and the entire conduct of the transaction and business of the syndicate; they are authorized to vote and act in respect of all stocks held by it, and to do any and all things by them in their sole and absolute discretion deemed proper, necessary or expedient to carry out the purposes of this agreement’; as also by section (15):

‘* * * No action shall be taken by said syndicate managers except at meetings duly called and held pursuant to rules adopted by the managers, and copies of said rules, as adopted shall be mailed to each syndicate subscriber.’

Among the rules adopted was ...