Horgan v. Morgan
| Decision Date | 10 July 1919 |
| Citation | 124 N.E. 32,233 Mass. 381 |
| Parties | HORGAN v. MORGAN et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; Marcus Morton, Judge.
Action by Frank T. Horgan against William H. Morgan and others. Verdict for plaintiff, and defendants except. Exceptions overruled.
Willard Howland and Clarence A. Warren, both of Boston, for plaintiff.
Charles A. McDonough, of Boston, for defendants.
The twelve promissory notes in suit were signed or endorsed ‘The Buena Vista Fruit Company, by Frank E. Morris, Acting Treasurer.’ This company is a voluntary association under a declaration of trust, dated December 27, 1907; and the defendants are all the residents of Massachusetts who were shareholders when the obligations sued on were contracted. The company received the proceeds of the notes; and the plaintiff purchased them for value and before maturity.
It was decided in Frost v. Thompson, 219 Mass. 360, 106 N. E. 1009 () that the Buena Vista Fruit Company is a partnership and not a trust. It is now contended, especially on behalf of fortyone of the defendants who were not either officers or original subscribers, that the authority of the treasurer or acting treasurer to sign or endorse promissory notes in the name of the company arises out of the provisions of the by-laws only, and that they are not bound by those by-laws.
It is true that the certificates of shares, while referring to the declaration of trust make no reference to the by-laws; but the former was filed in the office of the city clerk, and with the secretary of state, and the originals or copies of both the declaration and by-laws have always been on file in the office of the organization. The declaration expressly provides in article X that ‘the trustees shall have power to employ such attorneys, agents, clerks and a treasurer, and to fix the duties to be performed by them * * * as they may deem expedient.’ Among the powers and duties they prescribed for the treasurer, by one of the ‘by-laws,’ was that of making, signing and endorsing promissory notes in the name and behalf of the company. Mr. Dunning, the treasurer, became assistant manager of the plantations in Cuba in January, 1911, and manager in 1913, and has been there a considerable part of the time. This rendered it necessary to have an acting treasurer in Boston, and Mr. Morris was duly elected as such in January, 1911, and was authorized to sign all notes and order obligations in the name of the company. The trustees further voted ‘that said Frank E. Morris, while in said capacity as acting treasurer, succeed to all the duties of the treasurer as defined by the declaration of trust and by-laws of the company.’
Since that time Mr. Morris is the person who has signed all contracts, notes, checks and other obligations of the company, and endorsed all checks and notes. The auditor finds that:
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...Inc., 310 Mass. 55, 36 N.E.2d 833;Bryan v. Welch, 10 Cir., 74 F.2d 964. The plaintiffs direct attention to statements in Horgan v. Morgan, 233 Mass. 381, 124 N.E. 32, and in First National Bank of New Bedford v. Chartier, 305 Mass. 316, 25 N.E.2d 733, 736, that the rights and obligations of......
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...as such to the creditors of the so-called trust. In addition to the cases noted by him, may be added the following: Horgan v. Morgan (1919) 233 Mass. 381, 124 N. E. 32, held a partnership; Howe v. Chmielinski et al. (1921) 237 Mass. 532, 130 N. E. 56, held a partnership; Neville v. Gifford ......