Harding v. Broadway Nat. Bank of Chelsea (In re Francis & Badger Motor Co.)

• Decision Date: 29 May 1937
• Citation: 8 N.E.2d 797,297 Mass. 366
• Parties: In re FRANCIS & BADGER MOTOR CO. HARDING v. BROADWAY NAT. BANK OF CHELSEA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

297 Mass. 366

8 N.E.2d 797

In re FRANCIS & BADGER MOTOR CO. HARDING

v.BROADWAY NAT. BANK OF CHELSEA.

Supreme Judicial Court of Massachusetts, Suffolk.

May 29, 1937.

Proceedings for the dissolution of Francis & Badger Motor Company, wherein Robert E. Harding was appointed receiver, and the Broadway National Bank of Chelsea filed a petition for set-off of counterclaim. From a decree denying its petition, and from an order denying its request for a report of material facts, the Broadway National Bank of Chelsea appeals; and in an action of contract by Robert E. Harding, receiver, against the Broadway National Bank of Chelsea, defendant brings exceptions to refusal of its request for rulings.

Exceptions overruled, and decree affirmed.Appeal and Exceptions from Superior Court, Suffolk County; Pinanski, judge.

M. Witte, of Boston, for receiver.

C. A. Warren and L. F. Eley, both of Boston, for Broadway Nat. Bank of Chelsea.

PIERCE, Justice.

These are proceedings in equity and at law, wherein the Broadway National Bank of Chelsea, Massachusetts (hereafter called the bank), seeks to obtain set-off of a claim of the Francis & Badger Motor Co. (hereafter referred to as the motor company), against a larger claim of the bank against the motor company.

Proceedings at law, connected with the present proceedings, were before this court in Harding v. Broadway National Bank of Chelsea, 200 N.E. 386. In that action the receiver of the motor company sued the bank to recover certain deposits made with the bank by the motor company. The bank set up the defence that it had applied said deposits to an unmatured obligation of the depositor held by the bank, which obligation exceeded the claim of the motor company. This court denied the right of the bank to apply the deposits in that manner, and overruled the bank's exceptions.

After the filing of the rescript in that case on February 28, 1936, the bank, on March 18, 1936, filed a petition, in the proceedings in the Superior Court for dissolution of the motor company, for leave to present an amended claim. After the granting of its petition, the bank filed a claim for $2,430, which represented the whole amount, with interest, of the note obligation of the motor company to which the bank had earlier attempted to apply the amount of the deposits of the motor company.

The bank also filed a petition for set-off of counter claim, and in connection therewith presented certain requests for rulings. This petition was dismissed. The bank excepted to the denial of certain of its requests for rulings, and appealed from the decree dismissing its petition, and from an order of the court denying the bank's requestfor a report of the material facts on the ground that the judge had filed such a report.

At the same time the bank filed its petition in the equity proceedings, it also filed a motion in the law action brought against it by the receiver, by which it sought to have the action continued for judgment until further order of the court. In connection with this motion, the bank requested a ruling to the effect that the exercise of sound discretion required the granting of the motion. The motion was heard with the petition in the equity proceedings, the requested ruling was refused and the motion was denied. From the denial of its request for the ruling above stated the bank presents its bill of exceptions.

On March 26, 1936, the judge in the equity preceedings made the following statements and findings, under the heading ‘Agreements of Parties, Findings, Rulings and Order For A Decree’: ‘By agreement of the parties there was presented to the Court as evidence the following: 1. The record in the case of Robert E. Harding, Receiver of the Francis & Badger Motor Company, v. Broadway National Bank of Chelsea, Suffolk No. 288949. 2. The opinion of the Supreme Judicial Court filed February 29, 1936 [(Mass.) 200 N.E. 386], in the aforesaid action. 3. The original note with the endorsements thereon, a copy of which in its present form now appears attached to the petition as Exhibit A. 4. The parties agreed that the foregoing, with the exhibits attached to the record, may be considered by the Court as far as material and the Court may draw proper inferences therefrom, and from all other facts hereinafter agreed upon. 5. The parties further agreed, and the Court finds as facts, that from the date of the filing of the petition for dissolution, June 21, 1932, to the date of the appointment of the Receiver, September 23, 1932, the corporation liquidated its assets by the disposition of property and the collection of accounts receivable after payment of incidental expenses and turned over to the Receiver upon his appointment the sum of $214.35, being the net so received during this period. The parties further agree and the Court finds as facts the following: 6. That on the 8th of June and the 11th of June, 1932, and for a considerable period prior thereto and continuously thereafter to the present time the Francis & Badger Motor Company was insolvent. 7. The entire amount of money which has come into the hands of the Receiver since his appointment is $1380 and that after the payment of some administration expenses he now has five hundred and thirty-one dollars and some cents, and that there have been presented to the Receiver claims as follows: Accounts payable, $1173.19; notes payable $3951.58, including a proof by the Broadway National Bank, the petitioner here, in the sum of $693.23; customers' credit balances $1210.35; salaries and wages to employees $4536.94; taxes due the Commonwealth, total, $206.90, making a grand total of claims presented of $11,079.00, and that the Receiver has committed himself to his counsel for compensation and disbursements in the matter of the aforesaid action at law, Suffolk No. 288949 now also before the Court on a motion to continue for judgment. 8. That the word ‘Cancelled’ which appears across the endorsements of credits on the back of the note, which is Exhibit A attached to the petition of The Broadway National Bank, was placed there since the rescript from the Supreme Judicial Court in the action at law, Suffolk No. 288949, by the bank with the advice of its counsel, but without the knowledge or consent of the Francis & Badger Motor Company or of the Receiver in this case. With respect to the ‘Requests of The Broadway National Bank of Chelsea for Rulings on its Petition for Set-off of Counter Claim filed March 13, 1936,’ I give requests numbered 7, 12 and 13. I decline to give the remaining requests not always because they are not abstractly correct, but often because they are based on facts which I do not find. In so far as they are based on facts not appearing in the findings, I do not find such facts to exist. With respect to request numbered 8, in so far as it states the rule in Cromwell v. Parsons, 219 Mass. 299, 301, 106 N.E. 1020, I give it. Let a decree be entered denying and dismissing the petition.'

The parties in...