Forester v. O'Connell & Lee Mfg. Co.
| Decision Date | 04 February 1952 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | FORESTER et al. v. O'CONNELL & LEE MFG. CO. et al. |
A. L. Brown, Boston, F. H. Caskin, III, Boston, for plaintiffs.
W. B. Sleigh, Jr., Boston, R. C. Evarts and S. Bell, Boston, for defendants.
Before QUA, C. J., and LUMMUS, RONAN, WILKINS, and WILLIAMS, JJ.
This is an appeal from a final decree dismissing a suit brought by the plaintiffs to require the defendants specifically to perform a written contract by which the plaintiffs agreed to buy the real estate, fixtures, machinery, and equipment of The O'Connell & Lee Mfg. Co. for the sum of $25,000 and also all lumber and stock finished and in process at a price to be fixed by appraisal. Besides the corporation, the agreement was signed by the Cambridge Trust Company and by Curren and Smith, trustees under the will of Charles Lee. Curren and Smith did not sign in their individual capacities. The obligation to sell was subject to express conditions which will be presently discussed.
The corporation, The O'Connell & Lee Mfg. Co., was engaged in conducting a wood finishing plant. The defendant trustees held 570 shares out of its outstanding capital stock of 615 shares. In addition, Curren held individually 15 shares and Smith, 25 shares. The agreement provided for the delivery by the corporation of the deed and bill of sale twenty-five days from the date on which the trustees secured authorization from the Probate Court to vote the 570 shares in favor of the sale. The agreement also provided that 'The agreements and obligations of Seller hereunder are subject to the express conditions (1) that if within Ninety days from the date hereof * * * [the trustees] fail to secure authorization from said Probate Court to vote said 570 shares of capital stock in favor of this sale,' and (2) if the stockholders of two-thirds of all the stock fail to vote to consummate the sale, 'then and in either of such events Seller shall have the option to cancel and terminate this agreement forthwith, upon returning to Buyer said deposit of Twenty-Five Hundred (2,500.00) Dollars.' The agreement further stated that all the defendants, other than the corporation, joined in the agreement so as to enable them to agree with the buyer to use all reasonable efforts to complete the sale upon the terms and conditions set forth.
The judge of the Superior Court made a report of the material facts which contained the following findings. The trustees on July 20, 1951, the day after the buy and sell agreement was executed, filed a petition in the Probate Court reciting the making of the agreement and praying that they be authorized 'to vote said 570 shares in favor of the consummation of said sale at the price and upon the terms and conditions set forth in said agreement and of the liquidation of said company thereafter.' In order to expedite a decision upon the petition, counsel for the trustees immediately conferred with the judge with reference to the appointment of a guardian ad litem. The judge examined the petition and agreement and, being of the opinion that the will authorized them to do what they were seeking authority to do from the court, ordered the petition dismissed. The will contained no exculpatory clause. The corporation, shortly thereafter, received from a third party and...
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