Ward v. Salem Street Railway , 108 Mass. 332 ( 1871 )

Gray, J.

The material facts, so far as they can be gathered from the confused and unsatisfactory evidence offered at the hearing, appear to be as follows: On or about July 1, 1869, James P. Robinson, being a stockholder, but not then a director, in the defendant corporation, at his own expense furnished the corporation with ten cars which they took and ever since retained possession of; and an agreement for the use and purchase thereof (the terms of which are not in evidence, but the validity of which i» not denied by the plaintiff) was drawn up and authorized to be executed in behalf of the corporation, but was never completed between the parties. Robinson afterwards became a director in the corporation. After the corporation had borrowed money of him to the amount of $2500, and much negotiation had taken place between him and Goodell, the president of the corporation, as to the terms of paying him for the cars, and the corporation having no present means of discharging its obligations to bim, Goodell, on May 14, 1870, as president of the corporation, and pursuant to a vote of the directors passed at a meeting at which Robinson was not present, executed with him an agreement in writing, by which the corporation agreed to pay Robinson for the purchase of the cars $10,000, payable $2000 on May 20, 1870, and the rest in successive monthly instalments of $1000 each; and Robinson agreed to give the corporation a bill of sale of one car as soon as $2000 should have been paid, and of an additional car upon the payment of each successive instalment, and a full conveyance and release upon the payment of the whole price; and the corporation further agreed, until such payment for the cars, to pay him, for the use of each car not so paid for, at the rate of $10 a month from July 1, 1869. On May 23, 1870, Robinson brought an action at law against the corporation, returnable at the superior court on the first Monday of June, to recover the sums of $2500, lent them by him, with interest, $1100 for the use of the cars since July 1, 1869, and $10,000 as due under the agreement for the price of the cars. In that action, Goodell appeared for the corporation, and on June 23, pursuant to a vote of the directors in which Robinson took no part, and for the purpose, as Goodell testified, of giving Robinson security for his claim, agreed in writing with Robinson’s attorneys that judgment should be rendered for him for all the sums sued for —the greater part of the price of the cars not being then payable— and on June 25 judgment was rendered and execution issued accordingly, and the franchise levied upon and advertised to be sold thereon. Before the sale, the plaintiff in this suit requested the president and directors to attempt to procure a stay of proceedings on the execution and a vacating of the judgment, and, that request not being complied with, filed this bill.

We have found it unnecessary to consider the objection of multifariousness, because, upon a careful examination of the whole evidence, we are satisfied that the plaintiff has failed to make out a case upon any ground stated in the bill. As our conclusion depends mainly upon the decision of questions of fact, it may be very briefly stated.

It does not appear that the corporation had any other means of satisfying any part of the claim of Robinson, the whole consideration for which the corporation had received and enjoyed; or that it would have gained anything but delay and increased expense, by obliging him to bring separate actions for successive instalments as they should become payable under the contract, instead of allowing him to take one judgment for the whole amount due him.

The allegations of fraud and corruption and concealment are not sustained by the evidence.

The allegation that the president executed the contract with Robinson without authority is disproved by the records of the corporation.

The ground, taken in the argument, that the transactions complained of were void because Robinson was a director in the corporation when they took place, is not set up in the bill, which shows only that he was a director when the bill was filed, not at any previous time.

Decree dismissing the bill affirmed.