Dudley v. Sanborn, 159 Mass. 185, 188, 34 N. E. 181; G. L. c. 206, § 5. He received no profit or income arising from sales of intangible personal property on the estate between his own acquisition of the estate and the sale of the property in question. None of the beneficiaries of the estate have or can receive any such income. No such income accrued. forced pecuniary contributions levied to help, of the estate. There are numerous cases where the acquisition of title by the personal representatives of a deceased person is recognized as a distinct transfer of title. Laighton v. Brookline Trust Co., 225 Mass. 458, 460, 114 N. E. 671, L. R. A. 1917C, 129. Said Chief Justice Shaw in Lawrence v. Wright, 23 Pick, 128, 129: In Jewett v. Smith, 12 Mass. 309, questions goods of a deceased debtor on an execution arose touching the right of a sheriff to seize issued and delivered to the sheriff before the death but upon which the sheriff had taken no further action during the life of the debtor. It was said at 310: "The judgment debtor ceased to have any property in the chattels at his death. The property may be considered in abeyance, until administration is granted, and is then vested in the administrator, by relation, from the time of the death." It has been held that the estate of a decedent and the deceased person himself were separate for purposes of taxation. "The de These sections of the statutes in certain aspects differentiate between taxation incomes of estates of deceased persons and of natural persons. The terms of section 5 are comprehensive, and include every inhabit"The personal property of a deceased person ant of the commonwealth except as other- vests in the executor or administrator; and wise modified. The terms of section 9 modify when an administrator is appointed, the apthese broad terms. They impose the tax up-pointment relates back and vests the property on all income received by the deceased in- in him from the decease of the intestate." habitants during their lifetime to be paid by their states; but the income received by the estates of such deceased inhabitants is made subject to the tax only to the extent that the persons ultimately benefited by such income are inhabitants within this jurisdiction. By section 10 a tax is imposed on the "income received by estates held in trust." The income of estates thus taxed can refer only to that received from the body of capital after the death of the original owner. [4] Although the tax is exacted in these instances from the executor, administrator, or trustee, the person upon whom the burden of the tax fairly rests is the beneficiary, and whether the tax shall be levied at all depends upon the residence of the beneficiary. The right and interest of the beneficiaries incedent and his estate have long been regardthe property of the estate springs into existence at the death of the testator. Treadwell v. Cordis, 5 Gray, 341, 352, 353; Minot v. Amory, 2 Cush. 377; Hooper v. Bradford, 178 Mass. 95, 59 N. E. 678; Old Colony Trust Co. v. Treasurer and Receiver General, 238 Mass. 544, 548, 131 N. E. 321, 16 A. L. R. 689. [5] The executor or administrator, while in some respects holding in the right of the deceased, has title in his own right. He is the owner of the personal estate of the deceased although in a fiduciary capacity. The mere fact that the residence of the decedent was within the commonwealth does not under general principles of law render his personal estate subject to taxation here where such estate is not actually within the commonwealth and the executor or administrator who is its owner is a nonresident. Putnam v. Middleborough, 209 Mass. 456, 95 N. E. 749; Dallinger v. Rapello (C. C.) 14 Fed. 32, where the opinion was written by a former Chief Justice of this court. The decedent did not receive any income by the passage of his property on his death to his executor. The executor became on his appointment accountable for the actual value ed as separate taxable entities." Bankers' Trust Co. v. Bowers (C. C. A.) 295 Fed. 89, 94. The commonwealth receives by way of succession and legacy taxes under G. L. c. 65, a contribution from the estate of the decedent, which the general court may have regarded as all that should be exacted in circumstances like the present. [6] It is a familiar principle of statutory interpretation that tax laws are to be strictly construed against the taxing power. If the right to tax is not plain, it is not to be implied. Doubts are resolved in favor of the taxpayer. Eaton, Crane & Pike Co. v. Commonwealth, 237 Mass. 523, 530, 130 N. E. 99, and cases there collected; United States v. Merriam, 263 U. S. 179, 188, 44 Sup. Ct. 69. The statute under which the present tax was assessed does not include within its terms the right to levy such a tax. Therefore the tax cannot stand. It is abated as a whole. The amount of the tax paid is to be repaid to the complainant by the State Treasurer with interest at the rate of 6 per cent. per annum from the time when the tax was paid, and cost. G. L. c. 62, § 47. So ordered. (144 N.E.) BRAND v. STERLING MOTOR CAR CO. (Supreme Judicial Court of Massachusetts. Plymouth. May 23, 1924.) 1. Contracts 176(1)-Construction of contract held matter of law for court. Construction of contract for compensation for obtaining orders from government held matter of law for court, and not question of fact. which the plaintiff again obtained a verdict. The rights of the parties under the fifth count rest on the contract of November 15, 1917, which reads: "It is hereby agreed between W. T. Marsh representing the Sterling Motor Car Company of Brockton, Mass., and yourself that in consideration of and for services rendered and to be rendered in the assisting of securing a contract from the United States government for 2. Customs and usages 16-Custom held one pound shells complete (subcontracts for not to be read into contract. Custom in banking business for lender to require, and for borrower to furnish, audited statements could not be read into contract to pay commission for obtaining government order and a credit required to enable promissor to undertake performance of contract with government. some of the parts to be allowed) also for the assisting in the financing of the order, that the following commission is to be paid to you by the Sterling Motor Car Company, based on the size of the order as per: 3. Customs and usages 16-Custom cannot Order for 2,000,000 shells, commission to be ... A custom could not be read into contract which imposed an obligation on defendant which he did not expressly or impliedly assume. 4. Brokers 49(1)-Money advanced by government held not to constitute credit obtained by plaintiff. Where defendant contracted to pay plaintiff commission for obtaining contracts from government and raising credit, latter being chief object of the contract, held, that money advanced by government War Credit Board did not constitute credit obtained by plaintiff in performance of his contract, though he appeared before that board as vice president of defendant, under Act Cong. Oct. 6, 1917, § 5 (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 6648a). Report from Superior Court, Plymouth County; Frderick J. McLeod, Judge. Action of contract by James H. Brand against the Sterling Motor Car Company. On report. Judgment for defendant. Lee M. Friedman, of Boston, and F. J. Geogan, of Rockland, for plaintiff. Robert G. Dodge and R. S. Wilkins, both of Boston, for defendant. BRALEY, J. The declaration consisted of twelve counts. But only the first and fifth became material at the first trial when the plaintiff obtained a verdict for services alleged to have been rendered by him in the procurement for the defendant of contracts for the manufacture of munitions. The defendant's exceptions to the verdict on the first count, which rested on a contract bebetween the parties dated October 5, 1916, were overruled, but its exceptions to the verdict on the fifth count were sustained. Brand v. Sterling Motor Car Co., 243 Mass. 303, 137 N. E. 541, and the case is before us on exceptions of the defendant taken at the second trial confined to this count on Order for 1,000,000 shells, commission "It is further agreed that you are to raise cash or establish a credit based on the size of the order, as follows: Order for 4,000,000 shells, maximum credit to be $400,000 300,000 200,000 100,000 "It is further agreed that the above commission is to be paid by the Sterling Motor Car Company to James H. Brand as and when the contract is signed and cash delivered or credit established. "It is further agreed that the Sterling Motor Car Company are to allow you fifty dollars (50) per week for living expenses, should it become necessary for you to live in Boston and it is also agreed that you are to become vicepresident of the Sterling Motor Car Company and are to devote such time as may be necessary to the interests of this company while the contract is in force. "It is understood that the credit to be raised by you is the chief object to this contract." [1] The construction of this contract was matter of law for the court, and not a question of fact. It was admitted that the plaintiff, who was elected a vice president of the company, assisted in procuring a contract which the defendant made with the United States for the manufacture of 2,000,000 one pound shells, and, the contract having provided "that you are to raise cash or establish credit on the size of the order," the plaintiff contends that he performed this part of the agreement by making arrangements for a loan with Spitzer, Rorick and Company, a firm of bankers, which failed of consummation because of the defendant's fault. But the trial court, upon the evidence admitted on this issue which in substance was the same as at the first trial, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes followed the previous decision, that the plain-, by you is the chief object of this agreement." tiff could not recover and declined to submit While the act of Congress was the law of this question to the jury. The ruling was the land, the parties had no actual knowledge right. The plaintiff testified that Rorick of it when they made their contract. The acting for the firm agreed, "if the defendant plaintiff undertook to obtain the money from could furnish * * * a satisfactory au- banks or bankers, either by a direct loan dited statement, and he was satisfied with to the defendant of the entire amount, or by the management of the company," the a system of credit on which the defendant bankers would lend the defendant $200,000, could draw when necessary. While the dethe amount required to enable it to under- fendant itself might have obtained the take the performance of the contract for money, or the required financial assistance munitions. It was admitted that the com- without the plaintiff's services as a broker, pany did not promise to furnish any state- yet if he performed his contract he could not ment, and the evidence of the plaintiff did be deprived of his commission. It is true the not warrant a finding that on the negotia- jury could find that when all his various tions as disclosed he had earned a commis- attempts to obtain money from outside sion. Brand v. Sterling Motor Car Co., 243 sources had failed he directed the defendMass. 303, 317, 137 N. E. 541. ant's attention to the War Credits Board as a possible means of financing the defendant's requirements, and exerted himself to secure an advance payment. The record however shows that the board dealt with the contractors alone, and declined to negotiate with brokers. The sixth article of the contract with the government is explicit. "The contractor shall use the money advanced under this agreement solely in the direct performance of the principal agreement," which was the contract for the shells. It is manifest from the plaintiff's own evidence that he knew of these conditions, and in his interviews with the board under the application made by the company for a loan he acted as vice-president. We quote from his testimony: [2, 3] The plaintiff, to avoid this result, as well as the effect of the former decision, offered evidence of a "custom in the banking business for the lender to require, and for the borrower to furnish audited statements where applications are made for loans from outside banking houses or banks." The evidence was excluded rightly. A custom could not be read into the contract which imposed on the defendant an obligation which it did not expressly or impliedly assume. Rosenbush v. Learned, 242 Mass. 297, 301, 136 N. E. 341. [4] The remaining issue was whether the $200,000 advanced by the government to the company constituted either cash or a credit obtained by the plaintiff in performance of his contract. The contract is clear. Before the plaintiff could recover the stipulated commission on the order, he engaged to procure in cash or establish a credit for the company based on the size of the order, and the order having been given for 2,000,000 shells, the amount to be provided was $200,000. By Act of Congress 1917, c. 79, § 5; 40 U. S. St. at Large, 383 (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 6648a) a War Credit Board was established which could make payments in advance to contractors making munitions for the government. The defendant, upon compliance with certain conditions required by the contract with the governent, finally obtained an advance payment from the board of $200,000, and entered upon the performance of the contract. The plaintiff claims that he is entitled to a commission for obtaining the payment; a question not raised at the first trial. Brand v. Sterling Motor Car Co., 243 Mass. 303, 315, 137 N. E. 541. The contract of the parties expressly provides "it is further agreed that you are to raise cash or establish a credit on the size of the order as follows * for 2,000,000 shells maximum credit to be $200,000," and "it is understood that the credit to be raised "I went to see them purely as a representative and officer of the Sterling Motor Car Company." "And you didn't go there on a commission understanding?" "Not on a commission basis at all. It was simply as an officer working for the Sterling Motor Car Company." The plaintiff moreover "understood that the government required that every dollar of the money awarded by it to a contractor on advance payment like this had to be applied to the purpose of the contract." The salient facts were insufficient to warrant a finding that the plaintiff either raised $200,000 or established a credit for this amount on which the defendant could draw. And, not having performed his contract, he had failed to earn a commission, and his employment as originally contemplated by the parties was ended. Fitzpatrick v. Gilson, 176 Mass. 477, 478, 57 N. E 1000; French v. McKay, 181 Mass. 485, 486, 63 N. E. 1068; Smith v. Kimball, 193 Mass. 582, 79 N. E. 800; Bowes v. Henry, 228 Mass. 341, 117 N. E. 341. The motion for a directed verdict should have been granted, and in accordance with the terms of the report the entry must be Judgment for the defendant on the fifth count. (144 N.E.) the action be dismissed as to Margaret L. ARMSTRONG KNITTING MILLS v. OAKES Oakes or her estate. In the superior court this motion of the executor was allowed and the case reported to this court. et al. (Supreme Judicial Court of Massachusetts. Essex. June 5, 1924.) 1. Sales joint. [1, 2] The contract of Owen F. Oakes and Margaret L. Oakes was a joint contract. 66-Contract selling business held Bartlett v. Robbins, 5 Metc. 184; New Ha Instrument under seal, by which two persons sold property connected with business carried on under certain name, held joint contract, where it contained no language indicating severance of parties' liability. 2. Abatement and revival 64-Action on joint contract cannot proceed against executor and surviving contractor. An action on a joint contract cannot proceed, where one defendant dies pending suit, against executor as well as against surviving defendant, in view of G. L. c. 228, § 7, but plaintiff must discontinue as to one, in view of G. L. c. 197, § 8. ven & Northampton Co. v. Hayden, 119 Mass. 361; Meyer v. Estes, 164 Mass. 457, 41 N. E. 683, 32 L. R. A. 283; Wood v. Farmer, 200 Mass. 209, 213, 86 N. E. 297. It contains no language indicating the severance of the parties' liability. The declaration is based on the written contract, alleging that certain property and the good will of the business carried on by the defendants were sold to the plaintiff by a written agreement, and that the defendants thereby impliedly covenanted with the plaintiff that they would not interfere with the enjoyment of what they sold to the plaintiff under said written instrument. There is nothing in Old Report from Superior Court, Essex Coun- Corner Bookstore v. Upham, 194 Mass. 101, ty; John D. McLaughlin, Judge. Action of contract by the Armstrong Knitting Mills against Owen F. Oakes and Margaret L. Oakes. The last-named defendant dying, a motion is made to dismiss. On report. Motion denied, on condition. 80 N. E. 228, 120 Am. St. Rep. 532, and the other cases cited by the plaintiff, showing that the contract in question was several, or joint and several. In the case at bar the contract was joint; the action could not proceed against the executor as well as against the surviving defendant. New Haven & H. D. Linscott and H. R. Mayo, both of Northampton Co. v. Hayden, supra; Lee v. Lynn, for plaintiff. Blodget, 214 Mass. 374, 102 N. E. 67. See S. C. Rand, of Boston, and S. B. Ecker, Poland v. Otto, 243 Mass. 405, 408, 137 N. of New York City, for defendant. CARROLL, J. By an instrument under seal, dated January 2, 1912, Owen F. Oakes and Margaret L. Oakes sold to the plaintiff certain machinery and personal property connected with the business carried on by the sellers, under the name of Oakes Knitting Mills Company. The plaintiff's action is in contract against Owen F. and Margaret L. Oakes, the declaration alleging that the defendants have interfered with the good will of the business sold the plaintiff; that they have sought directly and indirectly to injure the business of the plaintiff, and have directly and indirectly entered the business of manufacturing and selling sweaters and other woolen goods, in competition with the plaintiff, to its damage. The case was tried before an auditor, who filed a report. E. 663. By G. L. c. 228, § 7, it is expressly provided if any of the several plaintiffs or defendants in a personal action, the cause of which survives, died before final judgment, the action may be prosecuted by the surviving plaintiff or against the surviving defendant, as the case may be. But the survivor and the executor of the deceased contractor could not be held in a joint action. The ruling of the trial judge was right. It appears from the report that the case was heard before an auditor. It is stated in the plaintiff's brief that the auditor found that Margaret L. Oakes violated her implied covenant of good will and that Owen F. Oakes did not, and assessed damages against her. If the plaintiff is allowed in the superior court within 60 days of the date of the rescript to amend its pleadings so as to While the action was pending, Margaret proceed against the executor of Margaret L. L. Oakes died on December 12, 1921. Owen Oakes, and the action is discontinued against F. Oakes was appointed her executor. There- Owen L. Oakes, the motion to dismiss the acafter the plaintiff filed a motion suggesting tion against her estate is to be denied. Lee the death of Margaret L. Oakes and the ap- v. Blodget, 214 Mass. 374, 102 N. E. 67; pointment of her executor, and asking that American Surety Co. v. Vinton, 224 Mass. a citation issue to the executor to appear and take upon himself the defense of the action. The executor appeared specially and moved that the process be dismissed, that he be excused from further answering, and that So ordered. 337, 112 N. E. 954; Poland v. Otto, supra, G. L. c. 197, § 8. Otherwise, the motion to dismiss the action against her estate is allowed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 144 N.E.-6 ZAMPATELLA v. THOMSON-CROOKER (Supreme Judicial Court of Massachusetts. Suffolk. May 21, 1924.) 1. Evidence 442(4)-Compensation to be paid employee under agreement for year "at the prices agreed upon" could be shown by evidence. Where signed agreement of employment was for one year from date "at the prices agreed upon," evidence was admissible to show that employee was to receive a certain fixed salary and bonus based on earnings for year. 2. Master and servant 80(10)-Finding of agreement to pay bonus sustained. Evidence held sufficient to sustain finding of legal contract to pay bonus, and that it was not mere gratuity. was posted that "the bonus would not be paid this year on account of business being bad." The written memorandum signed by the parties, was an incomplete contract; it did not purport to contain all its terms; there is nothing in the writing to show the wages which were to be paid the plaintiff. The evidence showing the wages he was to receive and the amount of the bonus based on his earnings for the year was admissible. North Packing & Provision Co. v. Lynch, 196 Mass. 204, 81 N. E. 891; Lyman B. Brooks Co. v. Wilson, 218 Mass. 205, 105 N. E. 607; Glackin v. Bennett, 226 Mass. 316, 319, 115 N. E. 490. If the jury believe this evidence, and the question was one of fact, they could find that a legal contract was made to pay this bonus; that it was not a mere gratuity but a part of the contract of service. See Scott v. J. F. Duthie & Co., 125 Wash. 470, 216 Pac. 853, 28 A. L. R. 328. 3. Master and servant 72-Agreement to [3] In the second case there was evidence pay bonus founded on consideration. for the jury that Harrington was employed An agreement in January to pay employee as a foreman by the defendant; that in Jana bonus of 15 per cent. on his year's pay, pay-uary, 1920, the general manager of the deable on Saturday before Christmas, was found-fendant agreed to pay him a bonus of 15 ed on good consideration. per cent. on his "year's pay," payable on the Saturday before Christmas, 1920; that Report from Superior Court, Suffolk Coun- Harrington continued in the defendant's emty; R. W. Irwin, Judge. ployment, and two or three days after Actions of contract by William Zampatella, Christmas, 1920, he asked the manager for James J. Harrington, and Bernard J. Shaft, the bonus, which was refused. This evidence respectively, against the Thomson-Crook-was contradicted. But the jury could have er Shoe Company, to recover a bonus. On found that the contract was definite, in that report. Judgments for plaintiffs on verdicts. it was a promise to pay a bonus of 15 Joseph G. Bryer, of Boston, for plaintiffs. per cent. on the wages earned by the plainJuggins & Fielding and Ralph E. Evans, all tiff, that it was founded on a good consideration, and that the plaintiff continued in the of Boston, for defendant. defendant's employment, relying on the promise to be paid the bonus on the Saturday before Christmas. The case was submitted to the jury properly and the judgment in his favor is to stand. CARROLL, J. These three cases were tried together. [1, 2] In the first case, Zampatella went to work for the defendant March 24, 1920, and continued in its employment until April 3, 1921. On March 30, 1920, the following agreement was signed: "March 30, 1920. "Mr. William Zampatella has hereby agreed to work for the Thomson-Crooker Shoe Company for one (1) year from date at the prices agreed upon. "[Signed] S. Zampatella. "[Signed] Thomson-Crooker Shoe Co." In the third case, it could have been found that, while in the defendant's employment, Shaft, the plaintiff, entered into an agreement by which he was to receive a bonus of 15 per cent. on his yearly wages, payable the week before Christmas in the year 1920; that this agreement was made on January 6, 1920; that he continued in the defendant's employment until January or February, 1921; and that the defendant refused to pay him the bonus of 15 per cent. as agreed. There was no error in submitting this case to the jury. There was a consideration for the contract, it was sufficiently definite, and the plaintiff, it could have been found, continued in the defendant's employment relying on the defendant's promise. Zampatella testified, subject to the defendant's exception, that Mr. Thomson, the defendant's president and general manager, agreed to pay him "80 cents a hundred," and said, "I will pay you 15 per cent. bonus on the money you earn at the end of the year"; that he (the plaintiff) agreed that he would sign a contract if Thomson "would bring it to him"; that he went to work the next day; that he signed the contract "five or six days later"; and that in December, 1920, a notice | So ordered. According to the terms of the report, in each case the verdict for the plaintiff is to stand and judgment is to be entered accordingly. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |