Downey Co. v. Whistler
| Decision Date | 29 November 1933 |
| Parties | DOWNEY CO. v. WHISTLER et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Reported from Superior Court, Suffolk County; Marcus Morton, Judge.
Action on contract by the Downey, Company against Ross Whistler and others, reported by the superior court after direction of verdict for defendant.
Judgment ordered for defendant on the verdict.
H. A. Baker, of Boston, for plaintiff.
W. F. Byrne C. A. Roberts and R. G. Wellings, all of Boston, for defendants.
This is an action of contract tried to a jury in the Superior Court. At the close of all the testimony the trial judge ordered the jury to return a verdict for the defendants. The plaintiff duly excepted. ‘The case is reported to the Supreme Judicial Court upon the agreement of the parties that if it should have been submitted to the jury, it may stand for a new trial, otherwise the verdict to stand.’
The defendants named in the writ are ‘Ross Whistler and Gerald D. Boardman as they are Trustees of the 282 Beacon Street Trust under a Declaration of Trust dated September 10, 1926.’ The declaration alleges, in substance, that the defendants are successors of the original trustees of said trust; that the original trustees contracted with the plaintiff to installplumbing and heating; that the plaintiff performed the contract and furnished extras; that the original trustees were succeeded in said office by the defendants, as trustees; and that the defendants, as trustees, owe the plaintiff the sum of $8,177.13 with interest.
The facts shown by the report disclose that the plaintiff bid on the work at 282 Beacon Street and signed an agreement, which was dated March 29, 1927, and was signed by the plaintiff by its president and treasurer, John J. Downey, and by ‘Owner, 282 Beacon St. Trust by Elliott Henderson, Trustee.’ The contract included an agreement that the contractor should furnish materials and perform work shown on drawings, specifications and revisions thereof, prepared by the architect, and that the ‘Owner should pay the Contractor as the work progressed in said proportions; that final payment should be due 40 days after the substantial completion of the work as certified by the Architect.’
At the time this contract was entered into the building numbered 282 Beacon Street was owned by the 282 Beacon Street Trust, which was created by a Declaration of Trust, dated September 10, 1926, and recorded in the Suffolk Registry of Deeds. Under that instrument Elliott Henderson and Roger B. Tyler were called the trustees, and declared ‘we will hold any and all property of whatever name or nature that may be conveyed to us as Trustees under this Declaration of Trust upon the following trusts for the following purposes and with the following powers. * * *’ Said declaration of trust provided that the ‘Two Trustees acting hereunder at any time shall have and exercise all the powers given to the Trustees herein named and if by reason of the decease, resignation or removal of a Trustee there shall be less than two Trustees acting hereunder the remaining Trustee shall have and exercise all such powers until a new Trustee has been appointed and the certificate of such appointment recorded with said Suffolk Deeds.’ It is also provided said declaration of trust that ‘In all contracts or other instruments imposing liability on the Trustees reference shall be made to this Declarationof Trust and it shall be expressly stipulated that no Trustee or shareholder hereunder shall be personally liable thereunder’; and that the trustees shall be responsible only for a wilful breach of trust and not one for the acts or defaults of the other.
The defendants admit that the plaintiff did the work and did it well; that it was worth the money charged; and that the plaintiff has never received payment in money for said work. The reported facts show that on March 30, 1929, Elliott Henderson gave his personal note for $8,500, payable in one year to the plaintiff, to Downey, its president and treasurer, to cover the work the plaintiff had furnished under the agreement. Henderson testified that the note was given in payment of the work performed. Downey testified that it was given not in payment of the account but ‘as a promise’; that he took it to a bank and deposited it for collection; that it was never indorsed to anybody; that the plaintiff sought payment ‘on account of the Note on 282 Beacon Street’; and that he was present at a meeting of the creditors of Henderson in August or September, 1932, but nothing was said about the note. At the trial the note was produced by the plaintiff and tendered to Elliott Henderson. The plaintiff further in open court disclaimed all rights under the note, relinquished all claims to it and released Elliott Henderson from any and all liability to the plaintiff based on said note.
The trust agreement provides, in substance, that the trustees shall have power to hold, manage and dispose of the estate held by...
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State St. Trust Co. v. Hall
...rights of the parties which were created by the common law could not be affected by subsequent legislation. In Downey Co. v. Whistler, 284 Mass. 461, 188 N.E. 243, the plaintiff contended that section 17 made the trustees liable as partners for the acts of the preceding trustees, but the co......
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State Street Trust Co. v. Hall
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