Goldenberg v. Taglino

• Citation: 218 Mass. 357,105 N.E. 883
• Parties: GOLDENBERG et al. v. TAGLINO.
• Decision Date: 17 June 1914
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

218 Mass. 357

105 N.E. 883

GOLDENBERG et al. v. TAGLINO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 17, 1914

COUNSEL

Edwin A. Howes, Jr., and Roscoe Walsworth, both of Boston, for appellant.

Jos. W Fowler, of Boston, for appellees.

OPINION

RUGG C.J.

This is a bill in equity for the specific performance of a contract to which the parties were the plaintiffs, Goldenberg and the Alberti Importing & Exporting Company, Incorporated, the defendant, a brother of the defendant and another person named Frangipane. The plaintiffs' exceptions to the master's report were sustained and the defendant's overruled, and after decree for the plaintiffs the case is brought here by the defendant's appeal.

The contract, out of which the suit grows, related primarily to the purchase by the plaintiff Goldenberg from the defendant of the controlling interest in the plaintiff corporation with many ancillary clauses. By one of these the defendant guaranteed all outstanding accounts then due to the corporation, and agreed that it should have a lien on his stock and on any sums due him from it to secure the performance of his guaranty. The master found that there was due on this account from the defendant an amount in excess of $3,000, with interest at 6 per cent. from the filling of the bill. He further found that on August 9, 1911, the plaintiff corporation owed the defendant $2,250.57, which by agreement was to bear interest at 4 per cent., and that two days before this suit was brought the plaintiffs notified the defendant that it had decided to charge off this loan against an equivalent amount due on the guaranteed accounts, but that this had never been done. The plaintiffs alleged in their bill that this amount had been so charged off as was permitted by the contract, and that the plaintiff corporation had notified the defend- ant that it had decided so to charge it off. Standing alone this would have bound the plaintiffs, and (if admitted by the defendant) they would not have been allowed to take a position in conflict with the case as stated in their bill. But the defendant although admitting that he received the notice specifically denied the other allegations upon this point. It thus became an issue between the parties upon which the master was obliged to pass. The evidence is not reported, and the master's report cannot be overturned unless wrong as matter of law. Notice by the plaintiffs of a decision on their part to charge the indebtedness against the amount due on the guaranty was not equivalent of doing so. Until it actually was done the state of the account was not changed by the forming of a purpose to that end. No error is shown in this regard.

It was provided by clause 2 of the contract that 54 shares of stock in the corporation were transferred to the plaintiff Goldenberg, and one more to his nominee, by the defendant 'with the understanding and agreement of all parties hereto that the said shares are a controlling interest in said corporation and are to carry all the incidents of control excepting in so far as hereinafter limited'; while by clause 16 'Goldenberg agrees that, so long as he and A. A. Taglino are stockholders in said corporation, A. A. Taglino shall continue in the employ of the corporation.' Against the objection and subject to the exception of the plaintiffs, the master received evidence and made a finding thereon to the effect that in the course of the negotiations resulting in the contract the parties mutually agreed that the defendant should act as 'inside salesman' and have general charge of the shipping department of the corporation, and that the salaries of Goldenberg and the defendant should be the same so long as the latter continued in the employment, and that the plaintiff had violated the terms of this agreement. There was error in this respect. Where parties, without fraud or mistake, have reduced to writing a contract, it is presumed alone to express the final conclusion reached and...