Fordyce v. Dillaway

• Decision Date: 20 June 1912
• Citation: Fordyce v. Dillaway, 212 Mass. 404, 99 N.E. 166 (Mass. 1912)
• Parties: FORDYCE v. DILLAWAY et al.
• Court: Supreme Judicial Court of Massachusetts

212 Mass. 404

99 N.E. 166

FORDYCE v. DILLAWAY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 20, 1912

COUNSEL

G. W. Anderson, of Boston, for plaintiff.

Frank Paul, of Boston, for defendants.

OPINION

BRALEY J.

The questions presented by the cross-appeals are: What amount, if any, is the plaintiff entitled to recover from the defendant Dillaway? and if relief should be given, whether the final decree is supported by the averments of the bill.

The plaintiff, the defendant and one Temple, who died before suit was commenced, organized a corporation to enter into competition with the defendant the American Pneumatic Service Company, formerly in their control, but from which they had been displaced by changes in the corporate management.After nearly two years of competition, with extensive litigation between the companies concerning alleged infringement of patents either owned or controlled by the defendant corporation, the new company ceased to do business under the agreements in writing appearing in the record.It is fairly to be inferred, from the oral testimony of the defense, that by reason of the business ability and large experience of the personal defendant the procurement of his services or co-operation in the future operated as an inducement for the contracts.But irrespective of the controlling purpose whatever it may have been, this defendant received the stock and bonds which formed the consideration under the second agreement, and by an oral arrangement among themselves the stock and bonds were divided in the proportion of three-fifths to himself and one-fifth each to the plaintiff and Temple.By the terms of the first agreement executed February 23, 1909, to which neither the plaintiff nor Temple were parties, the defendant was to receive as advisory counsel in various capacities a yearly salary from the purchasing company payable quarterly during the ensuing five years at the rate of $25,000 a year for the first two years and $20,000 a year for the remainder of the period.It is contended by the plaintiff, whose testimony sustains his position, that the defendant agreed to make a similar division of the salary as the installments were received.The first agreement contained a clause that if the second agreement should be broken by either the plaintiff or Temple the salary should be reduced very appreciably, but upon a breach by both the reduction should be doubled.It was greatly for the defendant's pecuniary advantage that the second agreement should not be violated.The defendant's checks show that for the first two quarters he made payments to the plaintiff at a less rate, but in explanation of this difference the plaintiff testified that deductions were made in payment of his promissory note which the defendant held, and if this indebtedness were included these payments corresponded in amount with the agreement for division.During the succeeding six quarters the payments were reduced, and the plaintiff asks that the defendant be ordered to pay the arrearage.The dealings between the parties do not seem to have been inconsistent with the plaintiff's claim that his right to share in the money received as salary as well as in the stock and bonds had been recognized and conceded.Despite the defendant's positive denial of the plaintiff's statements, and his explanation of the checks as being merely gratuities, the finding of the single justice, shown by his memorandum of decision, that the oral agreement relied on by the plaintiff had been proved, should not be set aside.Revere Water Co. v. Winthrop,192 Mass. 455, 459, 78 N.E. 497.

Ordinarily...