Warner v. Brown

• Decision Date: 27 November 1918
• Citation: 231 Mass. 333,121 N.E. 69
• Parties: WARNER v. BROWN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

231 Mass. 333

121 N.E. 69

WARNER

v.BROWN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 27, 1918.

Appeal from Superior Court, Suffolk County; Charles F. Jenney, Judge.

Suit by Thor Warner against Walter E. Brown and others. From final decree dismissing the bill, plaintiff appeals. Decree affirmed.

J. H. Appleton and W. C. Cogswell, both of Boston, for appellant.

Harold Williams, Jr., of Boston, and Chas. E. Fay, of Jamaica Plains (Barker, Wood & Williams, of Boston, of counsel), for appellees.

RUGG, C. J.

This is a suit in equity whereby the plaintiff seeks to have transferred to him certain shares of stock in the Nixon-Nevada Mining Company. The Mining Company was incorporated under the laws of Maine, had a place of business in Boston, and was organized for the purchase of mines and interests therein in the state of Nevada and for the operation of such mines. The plaintiff and one Nelson entered into a contract in 1913 whereby they agreed to transfer to the company mining properties in the state of Nevada and the company agreed to pay to them specified shares of vendors' stock and upon named conditions further shares of treasury stock, all shares to be held by the defendant Brown as trustee under a pooling agreement for a term, which, with its extensions, had not expired when this suit was brought. This contract for purchase and payment was carried out on both sides.

It is contended that the plaintiff is precluded from maintaining this suit because all his interest in this stock has been transferred by Nelson by virtue of a power of attorney given him by the plaintiff. The transfer made by Nelson confessedly includes the plaintiff's interest in these shares, but it is urged that there was no authority conferred by the power of attorney to make such a transfer. The crucial question to be decided is the true construction of this power of attorney.

It is permissible to examine all the circumstances under which a written instrument was executed, so far as actually or presumably present to the minds of the parties, for the purpose of enabling the court to understand their situation and to apply their words to the right subject-matter in the light of all the attendant conditions.Parol testimony is admissible in this connection, not to control the written words, but to apply them to their proper objects. Willett v. Smith, 214 Mass. 494, 497, 101 N. E. 1058.

The circumstances in the case at bar were that the plaintiff and Nelson were joint owners of mining rights in Nevada. After the transfer of several of these to the Nixon-Nevada Company, Nelson was employed by the company to take charge of the mines thus transferred, and continued in this work until about March or April, 1915. Active operations at the mines were carried on until about January 1, 1915, when they were greatly reduced although not wholly suspended. The plaintiff left Nevada early in 1912, going to Calgary, Alberta, and later to the Hudson Bay region. There was some correspondence between him and Nelson referring to the mine operated by the Nixon-Nevada Mining Company and to controversies between Nelson and it, and to the possibility that the mine might revert to Nelson and the plaintiff.

The company was in financial difficulties. Nelson in his own name had commenced an action against it. The plaintiff knew of this fact. Nelson was in conference with the attorney of the company about the settlement of his claims and those of the plaintiff. It was under these circumstances that in May, 1915, at Calgary, the plaintiff executed the power of attorney upon a printed blank, which he there procured and filled out. It was in broad terms. Without enumerating other subjects covered, so far as concerns stocks, the power of attorney authorized Nelson to demand and receive sums due the plaintiff--

‘for or in respect of any shares, stock or interest, which I may now or hereafter hold in any joint-stock or incorporated company,’ and

‘to sell and absolutely dispose of * * * such shares, stocks * * * and other securities for money as are hereinbefore mentioned, * * * and generally to act in relation to my estate and effects, real and personal, as fully and effectually, in all respects, as I could do if personally present.’

Then followed in the handwriting of the plaintiff these words:

‘This power of attorney to remain in force one year from this date and to cover the state of Nevada only.’

It is plain that, if the concluding sentence were omitted, the power was comprehensive enough to authorize Nelson to transfer the interests of the plaintiff in the Mining Company. Even though no shares of stock stood in his name, the plaintiff was the beneficial owner of stock standing in the name of the defendant Brown, to hold as trustee solely for the purpose of executing the pooling arrangement. This beneficial right of the plaintiff in the shares thus held was included within the descriptive words ‘interest in any * * * incorporated company’ used in the power of attorney.

[6] The circumstances under which this power of attorney was executed, and the relations of the parties to property in Nevada, negative the contention that it did not extend to the property in which Nelson and plaintiff were jointly interested. Cases like Attwood v. Munnings, 7 Barn. & Cres. 278, have no pertinency to these facts. Plainly an agent may be empowered to sell property of his principal in connection with his own property. Cutter v. Demmon, 111 Mass. 474.

We are of opinion that the extensive authority of this power of attorney is not so cut down by...