Perry v. Hayes

• Decision Date: 18 June 1913
• Citation: 215 Mass. 296,102 N.E. 318
• Parties: PERRY v. HAYES et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

215 Mass. 296

102 N.E. 318

PERRY v. HAYES et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 18, 1913

COUNSEL

William M. Richardson, of Boston, for plaintiff.

Damon E. Hall, of Boston, for defendant Gale.

Charles M. Davenport, of Boston, pro se.

OPINION

HAMMOND J.

The declaration, after setting out that the plaintiff, by virtue of an agreement with the defendants Hayes and Gale, together with one Daggett and one Pye, became the holder of the greater part of the stock of the Canada, Atlantic & Plant Steamship Company, which he held subject to an obligation on his part to convey the same to the defendants Hayes, Gale and the said Daggett and Pye, upon their paying certain promissory notes held by him against them, amounting in the aggregate to $285,000, avers that Hayes and Gale, knowing that they would be unable to pay at maturity the said notes 'in order to lessen the value of the plaintiff's stock * * * and to enable them to obtain control of the steamship company and thereby to force the * * * plaintiff from his position as director and treasurer of said company which he held through his ownership of substantially all the capital stock of said company, and for the purpose of compelling [the plaintiff] to extend the notes aforesaid or to accept a lesser sum than the principal and interest of said notes, conspired together * * * to cheat and defraud him' by illegally voting to issue 4,500 additional shares of stock; and that the said Hayes and Gale further conspired with the defendant Flanders to convey the same to him for an utterly inadequate consideration, to hold as the agent of Hayes and Gale, and that the stock was illegally issued and the notes never have been paid. The declaration further alleges that by reason of these acts of the defendants the plaintiff 'has been injured and has suffered large pecuniary losses.'

The action is for a tort. The allegation of consipracy does not charge in any way the nature of the wrong. It is simply a way of alleging joint action, and if proved then the act of each conspirator within the scope of the scheme is the act of every other. The gist of the action is the tort and not the conspiracy. Boston v. Simmons, 150 Mass. 461, 23 N.E. 210, 6 L. R. A. 629, 15 Am. St. Rep. 230; Randall v. Hazelton, 12 Allen, 412.

The things complained of are the illegal issue of stock and the removal of the plaintiff from the offices of director and treasurer of the corporation. So far...