Wakefield Water Co. v. New England Trust Co. , 175 Mass. 478 ( 1900 )

Barker, J.

1. The question is raised by the defendants, whether if the water company had the right to annul the authority of the trust company to issue bonds under the trust of 1892 in exchange for debenture bonds, the vote of the directors of the water company was effectual as an exercise by the company of that right. Upon this point we express no opinion.

2. The vote referred to assumes that the power of the trust company to make the exchange continued up to the time of passing the vote, and that it was thereby withdrawn. But the twenty-five debenture bonds of 1887 owned by the Woodstock National Bank had been presented by the bank to the trusty company for exchange in September, 1898, and before the passing of the directors’ vote' the bank had demanded of the trust company new bonds, the delivery of which alone was necessary to complete the exchange. By the construction which the water company has put upon the trust of 1892, the offer to holders of debenture bonds was open when the bonds of the bank were presented to the trust company for exchange, and when the new bonds were demanded. The bank having delivered up its bonds and perfected its right to an exchange, while, upon the plaintiff’s construction of the trust, the offer yet remained open, a subsequent withdrawal of the offer could not defeat the right of the bank to have the exchange completed.

Aside from the twenty-five bonds so placed with the trust company for exchange, the agreed facts show that there have been two hundred and seventy-two of the debenture bonds already exchanged. This leaves but three bonds of that kind, and it is not shown that their holders have offered them for exchange, or that they will be so offered. To inquire whether the trust company still has the power to exchange them is very much a moot question ; and it is a question in which the holder of those bonds, who is not before the court, has an interest, and in which his rights cannot now be settled in this cause.

For these reasons the decree of the Superior Court is affirmed.

So ordered.