Star Brewing Co. v. Flynn

• Decision Date: 07 January 1921
• Parties: STAR BREWING CO. v. FLYNN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

237 Mass. 213

129 N.E. 438

STAR BREWING CO.

v.FLYNN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 7, 1921.

Appeal from Superior Court, Suffolk County.

Suit by the Star Brewing Company against James F. Flynn and another, with trustee process. From decree for plaintiff, defendants appeal. Decree as to the named defendant modified to conform to the opinion; as to the other defendant, bill dismissed.

John W. Connelly, of Boston, for appellants.

Joseph Joyce Donahue, of Boston, for appellee.

PIERCE, J.

This is a suit in equity commenced by a writ of trustee process, and is here on an appeal from a final decree. The bill seeks to establish a debt as between the plaintiff and the defendant Flynn, and to have applied to the satisfaction of that debt certain indefinite and unenumerated merchandise which the bill charges Flynn transferred to the defendant Hotel Osborne, Incorporated, when that corporation was organized. The bill also seeks to reach and have applied to the indebtedness when established all shares of stock in the defendant corporation standing in he name of Flynn. The bill nowhere charges that the defendant Flynn has transferred to the defendant corporation any property in fraud of his creditors, or that the defendant corporation has received of the defendant Flynn any property of Flynn without consideration or with knowledge or in aid of any fraudulent purpose. The trustee named in the writ answered ‘No funds,’ and we assume was discharged. An answer was filed by Flynn, setting up the illegality of the consideration of each note. At his request four issues covering his contentions as to the illegality of the considerations were framed and submitted to a jury. The jury found each issue against him. The defendant Hotel Osborne, Incorporated, then answered the bill. The plaintiff filed a replication. A commissioner was appointed to take the evidence. The case was heard by a judge of the superior court, who entered a decree in favor of the plaintiff against both defendants, without making any findings of fact. No rulings of law were requested and a single exception only was taken, that being to the exclusion of evidence.

‘The entry of the decree implies a finding of every fact essential to the right entry of that decree permitted by the evidence’ and the pleading. ‘It is for this court to review the evidence and decide the case on its own judgment, both as to facts as well as law. But under the familiar rule, where oral testimony has been heard, the finding of the trial judge as to facts, either expressly made or necessarily implied by his disposition of the case, will not be reversed unless plainly wrong.’ Glazier v. Everett, 224 Mass. 184, 112 N. E. 1009.

From October 12, 1917, until August 22, 1918, the defendant Flynn was proprietor of the Hotel Osborne, and there carried on a liquor business under a license issued by the license commissioner of the city of Boston to him and to his bartender, McPartland. August 22, 1918, the business theretofore carried on by Flynn under the name of Hotel Osborne was incorporated under the name or style of Hotel Osborne, Incorporated. The defendant Hotel Osborne, Incorporated, was organized with a capital of $5,000, divided into one hundred shares of common stock. Fourteen shares of stock were issued of which the defendant Flynn owns one...