Vigilante v. Old South Trust Co.
| Decision Date | 26 February 1925 |
| Parties | VIGILANTE v. OLD SOUTH TRUST CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; S. E. Qua, Judge.
Action of contract by Nicola Vigilante against the Old South Trust Company to recover for services or wages as clerk. Finding for defendant, and plaintiff excepts. Judgment for defendant.
Frank P. Fralli, of Boston, for plaintiff.
S. L. Bailen, of Boston, for defendant.
[1] The procedure in this case is peculiar. In the superior court a rule issued to an auditor whose findings of fact were to be final. The auditor, instead of filing a report setting out simply the facts which he found to be true, reported that ‘a statement of the facts material to the issues of the case will be found in the opinion,’ and proceeded with a discussion of facts and law ending in a finding for the plaintiff. Such a course was improper.
On the filing of the report, the plaintiff moved that ‘judgment be entered in his favor on the auditor's report,’ and the defendant moved that ‘a ‘finding’ be entered for the defendant on the facts as found by the auditor, and that the remainder of the report as filed be rejected as surplusage.' Both parties sought a final determination of the case at the hearing on these motions. The judge denied the plaintiff's motion, allowed the defendant's motion, and made a finding for the defendant. The plaintiff excepts to the finding, the conclusion of fact, the rulings of law, the conclusion of law, the denial of the plaintiff's motion, the allowance of the defendant's motion, and all the rulings involved.
Only questions of law are brought before us by the exceptions. The findings of fact made by the auditor are final. They were so treated by the judge. The facts are, in substance: That, upon some date not stated, the bank commissioner took possession of the property and business of the defendant, the Old South Trust Company, under the statutes now embodied in G. L. c. 167, §§ 22-35, and, pending the possession and before a determination whether the trust company should be allowed to resume the prosecution of its business, required as a condition of such assumption that the president of the company or the company (the report does not definitely state which) should induce the depositors to allow one-half the total deposits to remain in the bank and take new capital stock in the company; that the plaintiff, who was assistant treasurer of the defendant up to the time when the bank was closed, was employed by the president to aid in bringing about a compliance with this condition by visiting and soliciting the depositors; that he was engaged in this work from January to June, 1920, rendered service of value, and is fairly entitled to $564 as compensation; that from time to time he asked for payment, but was told that funds were not available and that he would be paid upon the reopening. Though supporting facts are not set out, the auditor may be taken to find authority to hire in the president, and ratification by the company. The auditor finds that only ‘the major functions' of the bank were suspended; but he does not set out what, if any, of its functions the bank was, in fact, permitted to perform. No liquidating agent was appointed. The bank did reopen and the plaintiff was not paid.
[2] The Legislature has laid down in the statutes, now G. L. c. 167, §§ 22 to 35, inclusive, and acts in amendment thereof, a comprehensive course of procedure where, for any of the reasons set out in section 22, the bank commissioner intervenes in the conduct of the business of a bank or trust company. Commonwealth v. Commissioner of Banks, 240 Mass. 244, 133 N. E. 625;Cosmopolitan Trust Co. v. S. Agoos Tanning Co., 245 Mass. 69, 139 N. E. 806;Cosmopolitan Trust Co. v. Suffolk Knitting Mills, 247 Mass. 530, 143 N. E. 138. If he...
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...of its property and business. Commonwealth v. Commissioner of Banks, 240 Mass. 244, 250, 133 N.E. 625;Vigilante v. Old South Trust Co., 251 Mass. 385, 387, 146 N.E. 670. The commissioner of banks acts in this connection, not as a receiver appointed by the court nor as an agent or representa......
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... ... If that contention is ... sound, the cases are not removable. Commonwealth v ... Norman, 249 Mass. 123, 127, 144 N.E. 66; Stone v ... South Carolina, 117 U.S. 430, 433, 6 S.Ct. 799, 29 L.Ed ... 962; Title Guaranty & Surety Co. v. State of Idaho For ... Use of Allen, 240 U.S. 136, 140, ... Commonwealth v. Commissioner of Banks, 240 Mass ... 244, 250, 133 N.E. 625; Vigilante v. Old South Trust ... Co., 251 Mass. 385, 387, 146 N.E. 670. The commissioner ... of banks acts in this connection, not as a receiver appointed ... ...
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...defendants that the directors lack standing to maintain this action in behalf of the Bank. Relying on Vigilante v. Old South Trust Co., 251 Mass. 385, 387-388, 146 N.E. 670 (1925), defendants argue that only Central Bank can authorize litigation in the name of a certified member bank. It do......
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