Fitzgibbons v. White

• Decision Date: 26 January 1937
• Citation: Fitzgibbons v. White, 296 Mass. 468, 6 N.E.2d 429 (Mass. 1937)
• Parties: JOHN F. FITZGIBBONS v. DUANE C. WHITE.
• Court: Supreme Judicial Court of Massachusetts

296 Mass. 468

6 N.E.2d 429

JOHN F. FITZGIBBONS v. DUANE C. WHITE.

Supreme Judicial Court of Massachusetts, Middlesex.

January 26, 1937

October 8, 1936.

Present: RUGG, C.

J., CROSBY, PIERCE FIELD, & LUMMUS, JJ.

Equity Jurisdiction, Specific performance. Res Judicata.

A demurrer properly was sustained to a bill in equity seeking specific performance of a contract by the defendant to buy from the plaintiff shares of stock of a certain corporation where the bill contained no averments that the corporation was a close corporation, that its stock had no substantial market, that the stock agreed to be bought carried with it control of the corporation, or any other fact showing that the plaintiff had no adequate remedy at law.

Averments, in a bill in equity for specific performance of an agreement to buy from the plaintiff shares of stock in a certain corporation, that the plaintiff had brought an action at law for breach of the contract and that the trial judge had "found that the plaintiff had not complied with certain provisions of" G.L. c. 106 "and therefore could not maintain the action of contract, and found for the defendant," would not warrant sustaining a demurrer to the bill on the ground of a former adjudication, it not appearing from such averments that there had been an adjudication upon the merits.

BILL IN EQUITY filed in the Superior Court on October 24, 1934. An interlocutory decree sustaining a demurrer to the bill was entered by order of Williams, J., and a final decree dismissing the bill without prejudice was entered by order of Pinanski, J. The plaintiff appealed.

The case was submitted on briefs.

J. A. Pagum &amp G.

W. Shinney, for the plaintiff.

D. Burstein, for the defendant.

LUMMUS, J. The plaintiff, owning ninety-five shares of preferred stock and seventy-two shares of common stock in a corporation called The Brookside Company which conducted a laundry, received from the defendant on September 24, 1929 an agreement under seal by which the defendant agreed to buy said shares on or before October 1, 1932, at his election, at a price named. The defendant took over the control of the company on September 24, 1929.

The bill alleges that the parties agreed on October 30, 1930, at the suggestion of the defendant, that seventy-two shares of preferred stock and sixty-eight shares of common stock held by the plaintiff, be cancelled, and seventy-two shares of preferred stock be issued in place thereof to the plaintiff. The intimation is that all the holdings of the plaintiff were thereafter represented by these seventy-two shares, but this is not wholly clear. At any rate, on October 30, 1930, the following was added at the foot of the agreement of September 24, 1929, and signed but not sealed by the defendant: "The above agreement shall apply in the same terms to the 72 shares of preferred now owned by John F. Fitzgibbons."

The bill goes on to state that, after the defendant subsequently refused to purchase the stock, the plaintiff, on April 28, 1933 commenced an action of contract for breach of the agreement of September 24, 1929, and at the trial a judge "found...