Sherwin Williams Co. v. J. Mannos & Sons, Inc.

• Decision Date: 30 June 1934
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: SHERWIN WILLIAMS CO. v. J. MANNOS & SONS, Inc. MARYLAND CASUALTY CO. v. SAME. GRAUSTEIN v. SAME.

287 Mass. 304

191 N.E. 438

SHERWIN WILLIAMS CO.

v.J. MANNOS & SONS, Inc.

MARYLAND CASUALTY CO.

v.SAME.

GRAUSTEIN

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

June 30, 1934.

Appeal from Superior Court, Suffolk County; Whiting, Judge.

Consolidated suits by the Sherwin Williams Company and the Maryland Casualty Company, respectively, against J. Mannos & Sons, Inc., in which William A. Graustein and others intervened, and by William A. Graustein against the same defendant. From a decree dismissing the intervening petitions and claim of William A. Graustein, he appeals.

Affirmed.

W. A. Graustein, of Cambridge, in pro. per.

T. von Rosenvinge and J. J. Krohn, both of Boston, for William T. Goode.

R. Wait, of Boston, for defendant.

PIERCE, Justice.

The cases are before this court on a consolidated record presenting the appeals of William A. Graustein. In one case Graustein is the plaintiff, and in the others there are numerous interveners including Graustein, Samuel B. Mannos and William T. Goode. In each case the plaintiff, intervening petitioners, and ‘claimants' sought to reach a certain sum of money, which by a decree of the superior court in the case of Brooks et als. v. Commonwealth et als. had been established as due to the present defendant, J. Mannos & Sons, Inc. Graustein's bill of complaint, intervening petitions, and ‘claimant's claim’ to the fund decreed to be due the defendant are all based on an assignment to him by the defendant. Goode's intervening petition asserts a similar claim to the same fund based on an assignment to him. Samuel B. Mannos' claim is based upon claims for services performed for the defendant and money lent and that the defendant had entered into an agreement with him that the money received by it from its claim in the Brooks case was to be paid to him to be applied for legal services and the balance on the loan. During the progress of the cases all the matters in dispute were disposed of by decrees entered by consent of the parties interested therein except the claim of Graustein, Goode and Samuel B. Mannos. The cases were tried together. No evidence is reported.

In 1929, J. Mannos and his sons, P. Mannos and A. Mannos, were carrying on a painting business as a partnership. Samuel B. Mannos lent money to them to such an extent that he finally insisted that as a condition of further loans from him the business must be incorporated. This was done in July, 1929. Up to the spring of 1931, Samuel B. Mannos was the treasurer and general manager of the corporation. After that time P. Mannos acted as treasurer though he was not formally elected. In the fall of 1931, at least fifteen suits were pending against the corporation for the collection of unpaid accounts. Samuel B. Mannos feared that a petition in bankruptcy would be filed against the corporation. The corporation also had a claim pending against the commonwealth under the provisions of the statute giving a claim for work and materials furnished upon public buildings. This was in the form of an intervening petition in the case of Louis Brooks et als. v. Commonwealth et als. above referred to. Samuel B. Mannos then went to William A. Graustein to see if he could handle the situation of staving off the creditors and keeping the corporation out of bankruptcy and receivership. Graustein discussed the matter with him and agreed to look over the papers in the various cases then pending. The case of Maryland Casualty Company v. J. Mannos & Sons, Inc., was discussed and Graustein thought it might be fought successfully. The case of Louis Brooks et als. v. Commonwealth et als. was gone over thoroughly and Graustein could not say what it was worth. He expressed the opinion that the possibility existed of winning the plea in bar, but when it came to the evidence it did not look as if the corporation could get a great deal of money, if anything. The matter of compensation was taken up. The judge found that William A. Graustein was told that the corporation had no money to pay for his services; that the litigation would cost a lot of money, especially if the case of Louis Brooks et als. v. Commonwealth et als. went to the Supreme Judicial Court, that he wanted to know whether he could get his pay, that he could not do the work without pay and that from an examination of the papers brought to him the prospects of bankruptcy were very good in spite of what any man could do, that ‘if I am going to take my chances and do all this work I want to be secured for my pay.’ Samuel B. Mannos said the corporation ‘has nothing to secure you with.’ William A. Graustein said ‘i'll tell you what I'll do. If the corporation will give me a right out assignment both on the equity and legal title-so that I have the entire fund whatever I get out of it-to the case of Brooks et als. v. Commonwealth et als., I will proceed and help you in all these matters and try to keep the corporation out of bankruptcy or receivership and use my influence to settle these matters as cheaply as I can, and any cases that may be filed against the corporation until the final decree in my case that arise out of the transaction. I will also try and defend without any other-no other cost except that claim, and if the case goes to the Supreme Court of Massachusetts-the Commonwealth case-I'll pay all expenses of going there and I'll pay all the witness fees and costs for trying the Commonwealth case’; that ‘it was agreed between William A. Graustein and Samuel B. Mannos that if J. Mannos & Sons, Inc. would assign to him all its legal and equitable interest in the intervening petition brought by it in the case of Louis Brooks et als. v. Commonwealth et als., not as collateral for his fees and expenses, but absolutely so that he would have the entire fund, whatever was received from it, he would undertake the prosecution of its claim and all the other suits that had been brought against the corporation or in which it was a party, use his best efforts to stave off the creditors, use his influence to settle the claims as cheaply as possible and to keep the corporation out of receivership or bankruptcy until the claim of J. Mannos & Sons, Inc. in the intervening petition brought in the case of Louis Brooks et als. v. Commonwealth et als. had been disposed of; that he would perform all legal services of every nature required by the corporation from the date of the assignment to the date of the decree in the case of Louis Brooks et als. v. Commonwealth et als.; that he would bear all the expenses of prosecuting the claim against the Commonwealth including the expense of taking it to the Supreme Judicial Court if necessary without further charge to the corporation, that his services and expenses would not constitute a debt due him from J. Mannos & Sons, Inc., and that what he received out of the claim would be his only compensation for his services and expenses'; that he ‘stated that before acting in court in any case he would require a power of attorney authorizing him to act as an attorney in fact for the corporation.'

The judge further found as follows: The corporation voted that Samuel B. Mannos was authorized to sign the proper powers of attorney. An assignment of the claim above set forth was given to Graustein on January 16, 1932, executed by Samuel B. Mannos who had authority to execute the assignment. On January 1, 1932, Graustein began to perform services of a legal nature for J. Mannos & Sons, Inc. On March 11, 1932, receivership proceedings were brought by certain creditors. Graustein appeared for the corporation. Money to pay off these creditors was advanced by Goode and the receiver discharged. Shortly thereafter, at the suggestion of Graustein, an assignment dated March 18, 1932, was made to Goode of all claims of the corporation including future claims to secure him for money advanced. After considerable litigation the case of Brooks et als. v. Commonwealth et als. was disposed of by a decree under which the commonwealth was to pay J. Mannos & Sons, Inc., the sum of $3,116.29. Until the fall of 1932, there was, apparently, no friction between the members of the Mannos family, who owned all the stock of J. Mannos & Sons, Inc., William A. Graustein or William T. Goode. But after the claim against the commonwealth was established in the sum of $3,116.29, as above set forth, a controversy arose as to who should get this money. Graustein, Goode and Samuel B. Mannos all claimed it in whole or in part.

The judge found that ‘William A. Graustein is not a member of the bar; that he has been very careful to tell clients that he is not a member of the bar and that he has, before appearing in court, in every case called to my attention, obtained a power of attorney from the client to act as an attorney in fact; that each power of attorney called to my attention was on a stock form apparently drawn by him in advance in typewriting, with carbons, and with blanks left to fill in the name and address of the principal, the name of the case, the place and date of execution and the signature of the principal; that when he obtained a client having a case in court, he would produce a form, fill in the blanks and have the client execute it; that for the past twenty years he has devoted his time wholly to carryingon litigation of a substantial nature; that he is not engaged in any othr occupation; that he now turns clients away in droves; that he had cases in 1932 that were of vast importance and tried in some instances against leading members of the bar; that since 1925 his practice has been chiefly in jury waived cases; that he has appeared in the Superior Court in 277 cases, has also appeared to some extent in the Supreme Judicial Court and in the Federal courts; that he has practiced in the other courts of the Commonwealth, but does not now practice in a lower court; that he has given advice to clients on many matters; and that it has been his custom to charge for his...