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(146 N.E.) pany to be turned over to them or to others, makes it obvious that the plaintiff acted with for their personal benefit at the expense of reasonable diligence. Almy v. Almy, Bigelow the corporation or any of its stockholders. & Washburn, Inc., 235 Mass. 227, 126 N. E. The segregation and setting apart of more | 419; Monahan v. Harvard Brewing Co., 241 than $60,000 of the assets of the trust com- Mass. 286, 291, 135 N. E. 133. pany to be divided among stockholders as [11, 12] The demurrer cannot be sustained senting to the merger plan was fraudulent for want of necessary parties. Although “cerand illegal and a breach of trust on the part tain interests” and “certain persons" are reof the directors for which the corporation is ferred to in the bill, no relief is sought entitled to equitable relief.

against them; they are described merely as [6] The bill sets forth a series of material participants in the alleged scheme entered acts participated in by the defendants acting into by the defendants to defraud the trust together for a common purpose to defraud company. Nor does it appear that the Compthe plaintiff and others similarly situated, and troller of the Currency or the Atlas Realty is not multifarious. Accordingly the fourth Companý should have been joined; no relief ground of the demurrer cannot be sustained. is sought against them. Bay State Gas Co. v. Ginn v. Almy, 212 Mass. 486, 99 N. E. 276 ; Lawson, 188 Mass. 502, 74 N..E. 921; Von Raynes v. Sharp, 238 Mass. 20, 130 N. E. 199. Arnim v. American Tube Works, supra.

[7,8] The allegations that the defendant [13] The objections that certain allegations directors and the defendant banking insti- are made without any averment as to the tutions acting severally and in collusion with plaintiff's knowledge of the facts stated, or others for the purpose of diverting the funds that he is informed of the facts and believes and property of the trust company in the them to be true, cannot be sustained. The manner described, are certain and definite, plaintiff made oath that the statements in and being admitted by the demurrer, consti- the bill were true, except these made on intute a fraud upon the corporation and its formation and belief and those he believes to stockholders, relief for which exists in equity. be true. It follows that the first and the seventeenth

(14, 15] The defendants further contend grounds of the demurrer must be overruled. that it does not appear from the allegations Von Arnim v. American Tube Works, 188

of the bill as amended that upon notice and Mass. 515, 74 N. E. 680; United Zinc Co. v. Harwood, 216 Mass. 474, 476, 103 N. E. 1037, request of the plaintiff the directors of the Ann. Cas. 1915B, 948; Raynes v. Sharp, su- | Atlas Trust Company have refused to take

action with reference to the matters referred pra; Hayden v. Perfection Cooler Co., supra; Guay v. Holland System Hull Co., 244 Mass. to in the bill. It is well settled that where it 240, 247, 138 N. E. 557; Clair v. Colmes, 245 is plain that such an application to a corMass. 281, 139 N. E. 519.

poration for relief would be useless and in[9] The third ground of demurrer is with effectual the law does not require it to be out merit, and is overruled, as it does not made. The allegations of fraud, collusion appear from the face of the bill that the and conspiracy entered into by the directors, plaintiff has a complete and adequate remedy by which it is charged that a wrong has been at law. The averments made and the relief committed, show that they are, in the nature sought plainly show that an action at law of the case, incapable of representing the will not afford the Atlas Trust Company and corporation in any action or proceeding growits stockholders that relief to which they are ing out of their wrongful and fraudulent conentitled, but that the matter of complaint is duct for which relief is sought. To require a more fit subject for a bill in equity. application to be made to them to act as a

[10] It is alleged that soon after the acts condition precedent to maintaining a bill of the defendants described in the bill were would be futile. This ground of demurrer for committed, namely, on February 7, 1924, the the reasons stated is overruled. Brewer v. plaintiff instructed bis counsel to institute Boston Theatre, 104 Mass. 378; Blair v. Tele. this suit; tbat about four days later, at the gram Newspaper Co., 172 Mass. 201, 51 N. request of counsel for the defendants, the E. 1080; Almy v. Almy, Bigelow & Washburn, plaintiff deferred filling the bill pending a Inc., supra. conference between counsel which was held The demurrer must be sustained unless the on or about March 27, 1924, at which no ad- amendment hereinbefore referred to is made; justment was made. It appears that the bill if so made, the demurrer is overruled. was filed on March 29, 1924. This recital Ordered accordingly.

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Action of contract by Nicola Vigilante VIGILANTE v. OLD SOUTH TRUST CO. against the Old South Trust Company to re

cover for services or wages as clerk. Find(Supreme Judicial Court of Massachusetts. Suffolk. Feb. 26, 1925.)

ing for defendant, and plaintiff excepts.

Judgment for defendant. 1. Reference 88Auditor's report, setting

Frank P. Fralli, of Boston, for plaintiff. out facts and law, held improper.

S. L. Bailen, of Boston, for defendant. Where auditor's findings of fact were to be final, his course in reporting that statement of facts material to issues would be found in opin- WAIT, J. (1) The procedure in this case ion, and then proceeding to discuss facts and is peculiar. In the superior court a rule islaw, and ending in finding for plaintiff, was sued to an auditor whose findings of fact improper.

were to be final. The auditor, instead of fil2. Banks and banking Om631/2-Assets of bank ing a report setting out simply the facts

or trust company not to be depleted when in which he found to be true, reported that "a hands of banking commissioner.

statement of the facts material to the issues When banking commissioner takes posses- of the case will be found in the opinion," sion of bank or trust company, under G. L. c. and proceeded with a discussion of facts and 167, 8] 22-35, he takes its property and busi-law ending in a finding for the plaintiff. ness and nothing is permitted to deplete its Such a course was improper. assets while in his hands.

On the filing of the report, the plaintiff 3. Banks and banking 63/2-Banking com- moved that “judgment be entered in his fa.

missioner alone can subject credit of bank in vor on the auditor's report," and the dehis hands.

fendant moved that "a 'finding' be entered Credit of bank or trust company is taken for the defendant on the facts as found by by banking commissioner when he takes pos- the auditor, and that the remainder of the session of bank, under G. L. c. 167, 88 22-35, report as filed be rejected as surplusage." and be alone can subject it to obligation.

Both parties sought a final determination of 4. Banks and banking 317–Banking com- the case' at the hearing on these motions.

missioner held, under facts, not to have au- The judge denied the plaintiff's motion, althorized employment of plaintiff to work for lowed the defendant's motion, and made a trust company.

finding for the defendant. The plaintiff exFacts held not to show that banking com- cepts to the finding, the conclusion of fact, missioner, in charge of trust company, au- the rulings of law, the conclusion of law, the thorized its president to employ plaintiff to denial of the plaintiff's motion, the allowwork for it during attempted reorganization.

ance of the defendant's motion, and all the 5. Banks and banking 317–Banking com- rulings involved.

missioner cannot burden assets of trust com- Only questions of law are brought before pany in his hands, with obligation incurred us by the exceptions. The findings of fact to resume business.

made by the auditor are final. They were so Banking commissioner cannot burden assets treated by the judge. The facts are, in subof trust company in his hands, under G. L. stance: That, upon some date not stated, the c. 167, 88 22–35, with obligations incurred for

bank commissioner took possession of the purpose of resuming business.

property and business of the defendant, the 6. Banks and banking 317–Pending permis- Old South Trust Company, under the stat

sion to resume, neither officers nor bank could utes now embodied in G. L. C. 167, $8 22-35, subject its assets to obligation of contract of and, pending the possession and before a deemployment.

termination whether the trust company Where banking commissioner took over should be allowed to resume the prosecution trust company, under G. L. c. 167, 88 22-35, its of its business, required as a condition of officers had no power to act so as to bind it, and there was no credit which they or it could such assumption that the president of the subject to obligation to one employed by its company or the company (the report does not president to induce depositors to allow part of definitely state which) should induce the dedeposits to remain in bank and take new cap- positors to allow one-half the total deposits ital stock,

to remain in the bank and take new capital 7. Appeal and error 1175(7) Judgment to who was assistant treasurer of the defend

stock in the company; that the plaintiff, be entered on finding of judge on report of ant up to the time when the bank was auditor where clearly right.

Under G. L. c. 231, § 124, where the find-closed, was employed by the president to aid ing of the judge and his orders and rulings in bringing about a compliance with this of law on the report were clearly right, judg- condition by visiting and soliciting the dement must be entered on the finding on over- positors; that he was engaged in this work ruling exceptions thereto.

from January to June, 1920, rendered serv

ice of value, and is fairly entitled to $564 as Exceptions from Superior Court, Suffolk compensation; that from time to time he County ; S. E. Qua, Judge.

asked for payment, but was told that funds For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes

4

(146 N.E.) were not available and that he would be were not available and he would be paid aftpaid upon the reopening. Though supporter the defendant resumed the transaction of ing facts are not set out, the auditor may be its business. Such testimony negatives any taken to find authority to hire in the presi- inference that the commissioner authorized dent, and ratification by the company. The what was done. It may well be doubted auditor finds that only “the major func- whether the statutes permit the commissiontions” of the bank were suspended; but leer to give such authority. . While “the propdoes not set out what, if any, of its functions erty and business” of a bank are in his posthe bank was, in fact, permitted to perform. session, he holds them only for the purposes No liquidating agent was appointed. The contemplated by the statutes-their preserbank did reopen and the plaintiff was not vation against further loss, and their dispaid.

tribution among creditors, depositors and [2] The Legislature has laid down in the stockholders. He cannot burden them with statutes, now G. L. c. 167, 88 22 to 35, inclu- i obligations incurred for purposes of resumpsive, and acts in amendment thereof, a com- tion of business. Great abuse might result prehensive course of procedure where, for if he were allowed so to do; and even greatany of the reasons set out in section 22, the er abuse if the corporation without his conbank commissioner intervenes in the conduct sent or knowledge could incur new liabiliof the business of a bank or trust company.

ties. Commonwealth v. Commissioner of Banks,

[6] These considerations dispose of this 240 Mass. 244, 133 N. E. 625; Cosmopolitan case. Pending the permission to resume, the Trust Co. v. S. Agoos Tanning Co., 245 Mass. officers of the defendant had no power to act 69, 139 N. E. 806; Cosmopolitan Trust Co. v.

so as to bind the corporation; and there Suffolk Knitting Mills, 247 Mass. 530, 143 N.

was no credit of the corporation which they E. 138. If he decides to take possession he or it could subject to the obligation which takes "the property and business of such the plaintiff seeks to assert. bank." G. L. C. 167, § 22. This includes

[7] The finding of the judge upon the repossession of the franchise. "The bald ex- port of the auditor, his orders, and his rulistence of the corporation remains, but all ings of law were right. The exceptions are its other substantial rights and privileges overruled, and under G. L. c. 231, § 124, are in suspension." Greenfield Sayings

judgment is to be entered upon the finding

for the defendant. Bank v. Commonwealth, 211 Mass. 207, 209,

So ordered. 97 N. E. 927, 928. Thereupon the power of the corporation to transact business ceases. The statutes authorize it, with the written consent of the commissioner, to vote to dis TILLSON V. CRANEBROOK CO. solve and liquidate; but it can do business again only if the commissioner permits it to (Supreme Judicial Court of Massachusetts.

Plymouth. Feb. 25, 1925.) resume. G. L. c. 167, 88 22, 33. The commissioner may use the corporate powers for Waters and water courses I 14 - Evidence purposes of litigation, but no one else can held not to show willful or malicious injury exercise them until such time as he may per by not retaining water in great pond. mit the corporation to resume. In the mean Evidence held not to show defendant's willtime not only is the corporation powerless to ful or malicious injury to plaintiff by not react, but, "no bank, trust company, associa- taining water in great pond by its flashboards, tion or individual,

shall have a lien or that defendant had prevision of frost which or charge for any payment, advance or clear- injured plaintiff's cranberry vines, because waance thereafter made, or liability thereafter ter could not be pumped thereon from pond by

plaintiff. incurred, against any of the assets of the bank of whose property and business the Exceptions from Superior Court, Plymouth commissioner shall have taken possession. County; T. T. Broadhurst, Judge. G. L. c. 167, § 23. This language

Action of tort by Wilfred A. Tillson against does not apply to the plaintiff, but it indicates a policy that nothing shall be permit- the Cranebrook Company to recover damages ted to deplete the assets held by the commis- for alleged malicious and willful lowering of missioner.

a great pond, thereby preventing plaintiff (3-5] The credit of the corporation is one

from pumping water to protect cranberry

vines. Verdict for plaintiff, and defendant of the things taken by the commissioner. No one but him can subject it to an obliga

excepts. Exceptions sustained. tion. There is no finding of fact that the M. Collingwood, of Boston, for plaintiff. bank commissioner authorized the defendant G. W. Stetson, of Middleboro, for defendto employ the plaintiff and to promise pay- ant. ment from its assets. The only reasonable inference is to the contrary. The plaintiff RUGG, O. J. This is an action of tort to testified that he was told that the assets recover damages for the malicious and will

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ful lowering of Sampson's pond, a great pond hood. Its level was 45 inches below the bench in the town of Carver, whereby the plaintiff mark. At that level the plaintiff was unwas prevented to his great loss from exercis able to pump water on his bog with his aping his privilege of pumping water therefrom pliances. There was no evidence as to the to protect his cranberry vines. The evidence natural level of the pond or of its low-watended to show these facts: The plaintiff ter mark. The only evidence as to the dewas the owner of a cranberry bog near Samp- fendant's connection with the actual level son's pond. Water in sufficient quantity to of the pond in 1915 was that its treasurer How the bog was essential to protect the testified that he visited the outlet of Sampvines from frost and consequent damage to son's pond in May, 1915, and most of the the crop. The plaintiff had been granted a flashboards were out; that the water was license by the board of harbor and land com- running out of the pond; that about May missioners “to excavate a channel and lay a 25 or 26 he put in the flashboards; that the wooden flume below the natural high-water directors or other officers of the defendant mark in Sampson's pond

for the had never discussed the subject of the purpose of drawing water to flow his cran- plaintiff's taking water from the pond. One berry bog,

the bottom of said flume Sullivan testified that the president of the to be 4 feet wide and 4 feet below the level of defendant, some time in 1914, while near the high water in said pond as shown by a bench appliances of the plaintiff, said to him, “You mark,

One of the conditions of can't get no water out of here.” That was the license was that the "waters of said pond all the conversation. It did not appear that shall not be lowered except for necessary Sullivan had any connection with the plainand reasonable use in flowing the cranberry tiff. On or about May 5, 1915, the plaintiff, bog,

and in no event drawn lower finding that the water was going down, with than 4 feet below the level of the bench out being held by flashboards, caused a letmark.” The plaintiff constructed appliances ter to be written by his attorney to the deadapted for pumping water from the pond so as to flow his cranberry bog, the intake for fendant calling its attention to the fact that the water being 45 inches below the level of the water was becoming so low that he was the bench mark. Water sufficient to flow the unable to get sufficient water to flow his bog. bog to a depth of 12 inches would lower the On May 29 the plaintiff was unable to operate level of water in the pond one-half inch. At his pump because the water in Sampson's the outlet of the pond there is and has been pond was so low, whereby his cranberries since before 1850 a dam, at the time of the were greatly injured by a frost on that and plaintiff's injury under the control of the the following nights. defendant, with a flume and flashboards, This statement demonstrates, without furwhereby the level of the pond could be raised ther argument, that there was no evidence of or lowered. A few rods below this dam the willful or malicious injury to the plaintiff defendant owned and maintained a mill by the defendant. There is nothing to show equipped with flume and flashboards. Be the circumstances or the reasons of the flashtween these two dams was a little pond ca- boards being off the dam, or that the defendpable of being raised to the level of Sampson's ant took them off, or that the defendant had pond, so that its level might be controlled by any malice or ill will toward the plaintiff or flashboards at the mill. In the spring of purpose to injure him, or that it had any 1915 the water was as low in Sampson's pond prevision of a frost on May 29 and 30, 1915. as. it ever had been seen before, according to It is unnecessary to consider other questions. old residents and observers in the neighbor. Exceptions sustained.

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(146 N.E.)

! offense through which the property was lost SAVIN v. BUTLER. (No. 18422.) concededly was a robbery, for neither at

the common law nor by statute could a bur(Supreme Court of Ohio. Dec. 23, 1924. Rehearing Denied March 17, 1925.)

glary grow out of a transaction occurring

at 10 o'clock in the morning. (Syllabus by the Court.)

It is unnecessary, therefore, to determine Pledges ww 28—Pledgee relieved from liability whether Savin is bound by the rules applying for loss from certain causes, held liable for to pawnbrokers, whether he is bound by the loss through any other cause.

rules relating to warehousemen, or whether Where a pledgee accepts personal property he is bound by the rules governing an unas security for a loan and enters into a writ- i classifiable bailee for hire. Whatever may ten contract with the pledgor, one clause of the have been his status, he made a contract uncontract stating that the pledgee is “not to der which he was obligated to return the be held accountable for fire or burglary,” and goods or be responsible for the value therethe property has become lost to him and to of, save only in case of fire or of burglary. the pledgor by reason of a transaction which is neither a fire nor a burglary, the pledgee must Thus pro tanto he became an insurer.

As there is no dispute reg respond to the pledgor for the value of the

ing the ultiproperty,

mate facts, the question becomes one of law.

Since Savin accepted the property with an Error to Court of Appeals, Hamilton obligation on his part (other than as specified County.

in the two exceptions) to return it, and has Action by Joseph S. Butler against Samuel not exculpated himself, he is bound as a mat

ter of law to respond in damages. Savin. Judgment for plaintiff was affirmed

The superior court reached the right desby the Court of Appeals, and defendant

tination, although it proceeded by a circui. brings error. Affirmed.-[By Editorial Staff.}

tous route so to do. The Court of Appeals This case comes from Hamilton county. on the record affirmed the judgment, which In the superior court Joseph S. Butler was action is hereby approved. plaintiff, and Samuel Savin, a pawnbroker, Judgment affirmed. doing business in Cincinnati, was defendant. Plaintiff claimed a recovery growing out of MARSHALL, C. J., and MATTHIAS and a contract of pledge made with defendant. | ALLEN, JJ., concur. The defendant admitted having received the article in question, a gold diamond ring, as a pledge.

The issue was submitted to a jury, which SULLIVAN V. MANHATTAN MARKET CO. returned a verdict for plaintiff, on which

(two cases). judgment was entered, and, on error to the

(Supreme Judicial Court of Massachusetts. Court of Appeals, the judgment was affirmed.

Suffolk. Feb. 26, 1925.)
The case by this court was ordered certified
here.

1. Appeal and error Om 1078(4)-Exception to

admission of evidence, not argued, is waived. Pogue, Hoffheimer & Pogue, of Cincinnati,

Exception to admission of evidence, not havfor plaintiff in error.

ing been argued, is waived.
Knight & Phares, of Cincinnati, for de-
fendant in error.

2. Food Cm 25Negligence in making pie con-
taining body of mouse held for jury.

Whether plaintiffs suffered ptomaine poisonCONN, J. The questions argued on briefs ing by eating pie manufactured by defendant and orally grew out of claimed errors in the company, which contained body of mouse, and charge with respect to the burden of proof, whether reasonable inspection in exercise of and also claimed errors in the admission of reasonable care would have disclosed such forevidence.

eign substance in the filling, held, under evidence, In the view we take of the case the al- questions for jury. leged errors become unimportant, because 3. Food Cm 25-Manufacturer of part of pie they could not have been prejudicial, and will held responsible for finished product. not be considered.

Manufacturer of pie, which made its own The action was founded on contract. In crust, but bought filling, held responsible for the written agreement between the parties finished product, alleged by plaintiff's to have there is this provision: “Sam. Savin not to contained deleterious and poisonous matter. be held accountable in case of fire or burglary."

Exceptions from Superior Court, Suffolk The contract in question grew out of the County; F. Lawton, Judge. pledging by plaintiff below of a ring to de- Separate actions of tort by James Sullivan fendant, savin, to secure a loan. The facts and by Mary Sullivan against the Manhattan indisputably show that the property was not Market Company, to recover for alleged neglost through fire or because of burglary. The i ligence of defendant in preparation of food

maFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes 146 N.E.-43

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