McCarthy v. Parker

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: PIERCE
• Citation: McCarthy v. Parker, 243 Mass. 465, 138 N.E. 8 (Mass. 1923)
• Decision Date: 05 January 1923
• Parties: McCARTHY v. PARKER et al.

243 Mass. 465

138 N.E. 8

McCARTHY

v.PARKER et al.

Supreme Judicial Court of Massachusetts, Essex.

Jan. 5, 1923.

Report from Superior Court, Essex County; Henry T. Lummis, Judge.

Action by Francis V. McCarthy against Thomas B. Parker and others for legal services rendered persons doing business under a declaration of trust. Reported from the superior court after a jury finding for plaintiff and a directed verdict for defendants, in accordance with leave reserved. Judgment on the verdict.

Parsons, Wadleight & Crowley and Starr Parsons, all of Boston, for plaintiff.

George R. Stobbs and Harold H. Hartwell, both of Worcester, for defendants Baker and others.

Charles M. Thayer, Frank C. Smith, Jr., George A. Gaskill, and J. Otis Sibley, all of Worcester, for defendant Taft.

Frederick E. Shaw, of Lynn, for defendants Parker and others.

PIERCE, J.

This is an action of contract, brought by an attorney at law to recover on a quantum meruit with an account annexed the value of legal services, alleged to have been rendered the defendants, as copartners doing business under a declaration of trust as the Lynn Glass Manufacturing Company. The defendants answered general denial and payment; also that the declaration of trust created a trust and not a partnership; that the plaintiff's services were rendered with knowledge that the Lynn Glass Manufacturing Company was not a partnership, but was a trust operating under a declaration of trust. The case was tried to a jury upon an auditor's report, some oral and written evidence, and the declaration of trust; the jury found for the plaintiff. The judge, with the assent of the jury, under G. L. c. 231, § 120, in accordance with the leave reserved, directed a verdict for all the defendants; the plaintiff failed to file his exceptions to said direction, and the same were dismissed. The judge then reported the case to this court upon the following terms:

‘If in law the verdict of the jury was warranted on the evidence, and the action of the judge in entering a verdict for said defendants was erroneous, judgment is to be entered on the verdict of the jury; otherwise, judgment is to be entered on the verdict entered by the court.’

Without decision we assume the shareholders in the voluntary association operating under the declaration of trust set out in full in the report were partners as to all creditors, who did not expressly or impliedly contract only to look to the funds or property of the association for the payment of any debt, damage, or decree which might become due or payable to them. Williams v. Milton, 215 Mass. 1, 102 N. E. 355;Frost v. Thompson, 219 Mass. 360, 106 N. E. 1009;Hussey v. Arnold, 185 Mass. 202, 70 N. E. 87;Rand v. Farquhar, 226 Mass. 91, 115 N. E. 286.

The plaintiff on July 23, 1918, was retained to act for the association, as an attorney at law, by the general manager and treasurer with the knowledge and assent of the trustees in whom the power to employ counsel was placed by the declaration of trust. He acted in this capacity for a period of nearly a year,-about half his time being taken up with such work. He was consulted with the utmost frequency and often at great length by the president, treasurer, and general manager, all of whom were trustees or became such shortly after his first employment. Some of the shareholders, though not all, became acquainted with the employment of the defendant, and made no objections. He received some payments through the treasurer. He made no demand on the...