Nickerson v. Wheeler

• Decision Date: 06 September 1875
• Citation: 118 Mass. 295
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Frederick Nickerson v. Increase S. Wheeler & others

118 Mass. 295

Frederick Nickerson v. Increase S. Wheeler & others

Supreme Court of Massachusetts

September 6, 1875

Suffolk. Bill in equity, filed September 2, 1872, for contribution. Hearing before Endicott, J., who made a report of the case to the full court in substance as follows:

The plaintiff was director and president of a manufacturing corporation, organized under the Gen. Sts. c. 61, and the defendants were directors of the corporation. In 1870 a creditor recovered judgment against the corporation for a debt contracted in 1869, while the plaintiff and defendants were president and directors as aforesaid; and, an execution issued on said judgment being returned unsatisfied afterwards filed his bill in equity against the corporation and against the plaintiff and defendants as officers thereof on the St. of 1862, c. 218, to recover payment from said officers of the debt due him from the corporation, upon the ground that they had neglected to file the annual certificates required by the St. of 1862, c. 210; and upon final hearing, obtained a decree against the plaintiff and defendants in this suit, jointly and severally, for the amount of the debt due him from the corporation, because of their neglect to file said annual certificates. It was agreed in this case that reference might be had to the record of that case remaining in this court, and to the decision of the full court, reported under the name of Thayer v. New England Lithographic Steam Printing Co. 108 Mass. 523. Execution issued upon the decree in favor of the creditor against the plaintiff and the defendants in this suit, jointly and severally, which was levied upon and satisfied out of the property of the plaintiff in this suit, July 26, 1872, who thereupon filed this bill.

Upon the foregoing facts the judge ruled that the plaintiff could maintain this bill for contribution, and was entitled to a decree against the defendant Houghton for $ 436, that being the sum agreed upon if anything was due, with interest from the date of the filing of the bill; and against the defendant Burgess for the same amount, with interest from the same date, and, at the request of the defendants' counsel, reserved the case upon this ruling for the consideration of the full court.

Decree affirmed.

L. S. Dabney, for the defendants, was first called upon. The liability of the plaintiff and defendants, for which the plaintiff is seeking contribution, arose from their neglect to perform a duty imposed upon them by the St. of 1862, c. 210. The signature and oath of the president is an essential part of the certificate required by this statute, and therefore, whatever might be said in the case of any individual director, because only a majority of the directors is required to sign and swear, the duty imposed by the statute is one to the discharge of which the cooperation of the president is necessary. The neglect, therefore, out of which the liability of the parties arose, was a voluntary breach on the part of the plaintiff of a legal duty. The mode provided by law for the enforcement of such liability is immaterial. It is a liability arising ex delicto, St. 1863, c. 246, § 2, and the plaintiff stands in pari delicto with the defendants. Persons so circumstanced, unless relieved by some statute, are not entitled to contribution. Merryweather v. Nixan, 8 T. R. 186. 1 Hilliard on Torts, (3d ed.) 176, note. Chit. Con. (11th Am. ed.) 748, 897.

There is no statute giving contribution in such a case, although, upon examining the St. of 1862, c. 218, upon which the liability was enforced against the plaintiff, it appears that the Legislature, having contribution in mind, and giving it, by § 2, among stockholders, abstains from providing for it among officers, the obvious reason for the distinction being that stockholders are made liable for acts and neglects in which they do not participate, while it is otherwise as to officers. The same distinction again occurs in the St. of 1870, c. 224, §§ 38, 39. If the statute had given contribution among officers, it might have been claimed among those who had signed a certificate required by law knowing it to be false. The rule that there is no contribution among wrongdoers recognizes no distinction between misfeasance and nonfeasance. Oakes v. Spaulding, 40 Vt. 347. Spalding v. Oakes, 42 Vt. 343.

C. T. Russell, for the plaintiff, was not called upon.

Devens, J. Ames & Endicott, JJ., absent.

OPINION

Devens, J.

It is contended that, as the liability of the plaintiff and defendants to the creditors of the corporation, of which they were officers, arose from their neglect of duty as such officers to file the annual certificate required by the St of 1862, c. 210, the principle, upon which at common law it has been decided that one wrong-doer, who has paid the damages recovered on account of the wrongful act of both, is not entitled to...