Sohier v. Lamb
| Decision Date | 05 February 1883 |
| Citation | 134 Mass. 275 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Edward D. Sohier & another v. Thomas Lamb & others |
Argued March 11, 1881
Suffolk. Bill in equity, filed January 4, 1879, alleging that the plaintiffs were, on March 10, 1870, appointed, by an order of this court, receivers of the East Boston Ferry Company, a corporation duly established according to law with full power to collect, demand and receive the outstanding debts due the corporation, and all the assets and property thereof, to pay and discharge its debts and liabilities and to pay the balance to the stockholders of the corporation, and to take all proper measures at law and in equity to collect and recover all such property and assets that the receivers had entered upon their duties, collected claims due the corporation, discharged all its debts and obligations, and paid dividends to the stockholders to an amount stated.
The bill further alleged that the plaintiffs had collected all the assets of the corporation, and had wound up all its affairs, except one claim which would soon be disposed of; that they were desirous of finishing their duties as receivers, and of being discharged by the court.
The bill further alleged, that on July 16, 1866, the corporation had conveyed all of its property to certain persons, of whom the defendants are the successors, in trust, to secure certain bonds, which the corporation had authorized to be issued to the amount of $ 100,000, payable in five years from July 16, 1866; that said bonds were prepared and signed; that one of them to the amount of $ 5000 with coupons attached for interest at the rate of six per cent per annum, payable semiannually, was never issued nor negotiated, but was lost in some unknown manner, about October 13, 1866, and had never since been seen or heard from, and no payment of the principal or any part of the interest demanded of the corporation, the receivers or the trustees; that the remaining bonds, amounting to $ 95,000, were issued, and were paid in full on April 1, 1870; that all the provisions of the trust were complied with, except so far as there might be a liability to pay the principal and interest of the lost bond to any bona fide holder for value; that the trustees, at the request of the plaintiffs, released to the corporation the property conveyed in trust, and accepted from the plaintiffs the sum of $ 6500, to be held by the trustees, as substituted security, upon the same trusts as those upon which the trustees held the property previously conveyed to them, as far as applicable, and until such time as such bond and coupons were paid, or the right of any holders thereof, if any there were, was extinguished; that said sum of $ 6500 and the interest accrued thereon had ever since been held as security for the payment of said lost bond and coupons.
The prayer of the bill was that the defendants be compelled to pay to the plaintiffs said sum of $ 6500 and interest thereon; and for further relief.
On the filing of the bill, an order of notice was issued, by publication in two newspapers, which re cited the facts set forth in the bill, and all persons interested, and especially those claiming any interest in the lost bond, were ordered to appear on a day named.
The trustees alone appeared, and filed answers, admitting the facts alleged in the bill to be true.
At the hearing, before a single justice, a decree was ordered for the plaintiffs, in accordance with the prayer of the bill; and the defendants appealed to the full court.
Bill dismissed.
The case was argued, in March 1881, by C. A. Welch, for the plaintiffs, and by O. W. Holmes, Jr., for the defendants; and was reargued, in January 1883, by Welch, for the plaintiffs, and by G. O. Shattuck & W. A. Munroe, for the defendants.
The plaintiffs' counsel, to the point that the bond never had any valid existence, because it was never issued, cited Baxendale v. Bennett, 3 Q. B. D. 525; Burson v. Huntington, 21 Mich. 415; Chipman v. Tucker, 38 Wis. 43; Roberts v. McGrath, 38 Wis. 52; Roberts v. Wood, 38 Wis. 60.
The defendants' counsel, to the point that, if the bond was lost before issued, it would be held to be a binding obligation in the hands of a bona fide holder for value, cited Worcester County Bank v. Dorchester Bank, 10 Cush. 488; Ingham v. Primrose, 7 C. B. (N.S.) 82, 85; Swan v. North British Australasian Co. 2 H. & C. 175; Gould v. Segee, 5 Duer 260, 270; Shipley v. Carroll, 45 Ill. 285; Clarke v. Johnson, 54 Ill. 296; Briggs v. Ewart, 51 Mo. 245, 249; Kinyon v. Wohlford, 17 Minn. 239; Spitler v. James, 32 Ind. 202.
Field, J. W. Allen, J., absent. Holmes, J., did not sit.
The money now in the hands of the trustees is held, as the bill alleges, "as security for the payment of said lost bond and coupons," and was accepted from the receivers to be held by the trustees, as substituted security, upon the same terms as those upon which the trustees held the property previously conveyed to them, as far as applicable, and until such time as such bond or coupons were paid, or the right of any holders thereof, if any there were, was extinguished.
This bond was lost on or about October 13, 1866. Before it was lost, it had been duly executed and prepared ready to be issued, but, it is said, had not been issued. It was for the sum of $ 5000, payable in five years from July 16, 1866, with interest at the rate of six per cent per annum, payable semiannually, according to the tenor of interest coupons attached. The...
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Wilson v. Welch
...and J.L. Thorndike, for defendant. OPINION FIELD, C.J. Although the practice in this commonwealth has not been uniform,--see Sohier v. Lamb, 134 Mass. 275; Parker Nickerson, 137 Mass. 487; Bank v. Jenks, 7 Metc. (Mass.) 592; Boot & Shoe Mut. Fire Ins. Co. v. Melrose Orthodox Society, 117 Ma......