Treasurer & Receiver Gen. v. MacDale Warehouse Co. 

• Decision Date: 06 March 1928
• Citation: 262 Mass. 588,160 N.E. 434
• Parties: TREASURER AND RECEIVER GENERAL v. MACDALE WAREHOUSE CO., Inc., et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

262 Mass. 588

160 N.E. 434

TREASURER AND RECEIVER GENERAL

v.MACDALE WAREHOUSE CO., Inc., et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 6, 1928.

Exceptions from Superior Court, Suffolk County; Elias B. Bishop, Judge.

Action by the Treasurer and Receiver General of the Commonwealth, for the benefit of the National Radiator Company, against the Macdale Warehouse Company, Inc., and the Massachusetts Bonding & Insurance Company. Findings for defendants, and plaintiff brings exceptions. Exceptions overruled, and judgment entered for defendant Bonding Company.G. W. Reed, of Boston, for plaintiff.

R. H. Holt and R. H. Hopkins, both of Boston, for defendants.

CROSBY, J.

This is an action of contract, brought by the National Radiator Company in the name of the treasurer and receiver general of the commonwealth, under the provisions of G. L. c. 105, § 3, against the Macdale Warehouse Company, a Massachusetts corporation, as principal, and the Massachusetts Bonding & Insurance Company, also a Massachusetts corporation, as surety, on a warehouseman's bond dated January 9, 1920, running to Charles L. Burrill as treasurer and receiver general or his successor or successors in office.

The Macdale Warehouse Company was incorporated on January 6, 1920, for the purpose, among others, of ‘the creation and maintenance of warehouses for the storage of all kinds of goods and merchandise.’ The incorporators were Edward A. O'Donnell, John E. O'Donnell and John J. McCaffrey. McCaffrey, who owned all the stock of the corporation except two or three shares which stood in the names of his wife and others to enable them to qualify as directors, held the offices of director, treasurer and general manager. Shortly after incorporation, the Macdale Company, as principal, and the Massachusetts Bonding & Insurance Company, as surety, executed and delivered the bond above referred to, which was examined and approved by the Governor of the commonwealth. The condition was that:

‘Whereas the said Macdale Warehouse Company has been duly elected or appointed public warehouseman and has accepted the said office, now, therefore, if the said Macdale Warehouse Company shall faithfully perform and discharge all the duties of said office, as they now, or may hereafter, exist, during the term for which it has been elected or appointed and during such further time as it may continue to hold said office, whether by re-election or otherwise, then this obligation shall be void, otherwise it shall be and remain in full force and virtue.’

The bond was given as required by R. L. c. 69, § 1. The Macdale Company paid premiums on the bond from 1920 to 1924, and no other bond was filed by it during the times hereinafter referred to. A license to conduct business as public warehouseman in the city of Boston was issued to it, but did not specify at what place in the city the business could be conducted. The application filed by the Macdale Company with the Governor was not introduced in evidence. The license was not revoked until after the acts constituting the grounds of the present action arose.

The Macdale Company commenced business on January 15, 1920, on leased premises at 36 Scotia street, Boston, and thereafter, for a short time, conducted its business at 122 West First street, South Boston. On or about January 1, 1923, the building at 36 Scotia street having been sold and the lease of the company having expired, it transferred all the goods then in storage to the Boylston Storage Warehouse Company, which took possession of the Scotia street property. The Macdale Company did no business from January 1, 1923, until June of that year, when McCaffrey rented part of the premises at 350 C street, South Boston. The lease was not introduced in evidence and there is nothing to show whether such rental was in the name of the Macdale Company or of McCaffrey. No records of the corporation or of its books of account were introduced at the hearing. The plaintiff introduced evidence tending to show that the records and books were lost, but the trial judge in his findings states that he did not believe the reasons given for their non-production. He found that no meeting of the directors of the corporation was held subsequent to the closing of the Scotia street warehouse; that McCaffrey rented the premises at 350 C street and carried on business there without any specific or direct authority from the corporation or of its board of directors; that there were no signs on the building or lettering on the doors or windows to indicate that the corporation was carrying on business at 350 C street. The judge further found that there was nothing to indicate whether the business was being conducted by the Macdale Company or by McCaffrey, personally, except for the issuance of the warehouse receipts on blanks used at Scotia street, McCaffrey's statements to certain persons, and his indorsement of a certain note.

The only goods received in storage at 350 C street belonged to one Berry, either under the name of Commonwealth Pipe & Supply Company or of the Hanover Sales Company, and goods belonging to one Ludden. Berry, doing business in the name of the Commonwealth Pipe & Supply Company, was indebted to the National Radiator Company (for whose benefit this action is brought) and had placed in storage at 350 C street a quantity of steel pipe. To satisfy the radiator company, which was pressing for payment, McCaffrey, on June 11, 1923, issued to Berry two receipts for this pipe. At the request of Berry these receipts were destroyed by McCaffrey on the same day they were issued and McCaffrey issued to the radiator company two receipts for certainsteel pipe. These receipts were delivered on the same day to the credit manager of the radiator company as security for the indebtedness of Berry to the radiator company. Berry placed additional pipe in storage and was asked by the radiator company for further security; another receipt was sent to it. These three receipts were made on blanks which had been signed for use by the Macdale Company at 36 Scotia street and bore that address; all recited that the goods had been received ‘on storage at 350 C street, South Boston,’ for ‘account of National Radiator Company,’ and were signed ‘Macdale Warehouse Company, Inc., by J. J. McCaffrey, Treas.’ The trial judge found that on May 1, 1924, the radiator company made demand and attempted to obtain delivery of the goods; that they have disappeared and never have been found; that th...