Standard Oil Co. of New York v. Back Bay Hotels Garage, Inc. , 285 Mass. 129 ( 1934 )

Lummus, J.

The plaintiff is a creditor of the defendant corporation in the sum of $1,576.64 with interest from September 13, 1932, and the defendant corporation neglected to pay the debt for more than ten days after written demand on November 15, 1930, under G. L. (Ter. Ed.) c. 156, § 38. This bill is brought to hold hable for said debt the individual defendants who were officers of the corporation when it was contracted, and each of whom as president, treasurer or director signed one or more certificates of condition in 1928 or 1929 containing a material false representation as to the value of the real estate of the corporation which, on reasonable examination, he could have known to be false. These facts, unless the findings of the judge are to be set aside, established the liability of all the individual defendants, under G. L. c. 156, § 36. “The liability extends to obligations existing at the time the false statement or report is made, and to those thereafter arising while they hold office.” E. S. Parks Shellac Co. v. Harris, 237 Mass. 312, 314. The relaxation of liability by St. 1931, c. 313, § 1 (now G. L. [Ter. Ed.] c. 156, § 36), which was approved and took effect after the substantive basis of this suit became complete on November 25, 1930 (Union Market National Bank of Watertown v. Gardiner, 276 Mass. 490, 495), can afford no defence to the present suit. Frank Kumin Co. Inc. v. Marean, 283 Mass. 332.

The defendants attack the conclusion of the judge that on reasonable examination they could have known that the valuation stated was false and excessive. Though value rests upon opinion, it is a fact, and one constantly found by juries. The fact of value may be stated falsely. A false statement of value has been the foundation for a conviction of perjury. Commonwealth v. Butland, 119 Mass. 317. It has likewise supported an action for deceit. Andrews v. Jackson, 168 Mass. 266. Butler v. Martin, 247 Mass. 169. Reinherz v. American Piano Co. 254 Mass. 411, 420, 421. The cases in which a false representation as to value has been held nonactionable go on the ground that where the defendant has stated merely his own opinion rather than the opinion of the market which determines value, the plaintiff ought not to rely upon the representation. Deming v. Darling, 148 Mass. 504. Lynch v. Murphy, 171 Mass. 307. Gaucher v. Solomon, 279 Mass. 296, 299. Nevertheless, the element of opinion so pervades value that some allowance must be made for honest difference of opinion after reasonably careful - examination when we are called upon to determine statutory liability for a false statement of value. H. B. Humphrey Co. v. Pollack Roller Runner Sled Co. Inc. 278 Mass. 350, 353. In the present case, without discussing the subsidiary facts in detail, it is enough to say that we agree with the conclusion of the judge that the valuation stated by the defendants was false and a material misrepresentation, and that the defendants on reasonable examination could have known its falsity.

The defendant Plimpton filed a petition in bankruptcy on February 26, 1932, and on June 17, 1932, obtained his discharge, which he set up in bar of this suit. Bankruptcy discharges only provable debts. 42 U. S. Sts. at Large, 354, c. 22. Smith v. McQuillin, 193 Mass. 289. Ellis v. Burnham, 263 Mass. 57, 59. Provable debts include those which are “ (1) a fixed liability, as evidenced by a judgment or an instrument in writing, absolutely owing at the time of the filing of the petition . . . whether then payable or not ... (4) founded upon an open account, or upon a contract express or implied . . . .” 30 U. S. Sts. at Large, 562, § 63. The provision following that, for the liquidation and proof of unliquidated claims, relates only to unliquidated claims provable under the passage quoted, and does not enlarge the class of provable claims. Old Colony Boot & Shoe Co. v. Parker-Sampson-Adams Co. 183 Mass. 557, 561, 562. Cotting v. Hooper, Lewis & Co. Inc. 220 Mass. 273, 275. Schall v. Camors, 251 U. S. 239, 249-251. Claims “founded . . . upon a contract” need not be absolutely owing at the time of filing the petition in order to be provable, but may be liquidated pending the proceedings, and then proved. Frederic L. Grant Shoe Co. v. W. M. Laird Co. 212 U. S. 445. Williams v. United States Fidelity & Guaranty Co. 236 U. S. 549. Maynard v. Elliott, 283 U. S. 273. See Ellis v. Burnham, 263 Mass. 57; Quirk v. Smith, 268 Mass. 536. The liability for an assessment upon stockholders in a trust company “is an essential element in the contract by which the stockholders became members of the corporation,” and “becomes a part of every contract, debt, and engagement of the” trust company. Accordingly, it has been held that the liability arising out of such an assessment is “founded . . . upon a contract” and provable in bankruptcy. Cunningham v. Commissioner of Banks, 249 Mass. 401, 424-427. And in Frank Kumin Co. Inc. v. Marean, 283 Mass. 332, 335, it was held as to the liability of directors under G. L. c. 156, § 36, that in its nature it is contractual and that “the force and effect of this contractual obligation as to debts theretofore incurred cannot be impaired by legislative mandate.” Yet in Old Colony Boot & Shoe Co. v. Parker-Sampson-Adams Co. 183 Mass. 557, 559, 561, 562, the liability of a director under Pub. Sts. c. 106, § 60, “For debts contracted between the time of making or assenting to a loan to a stockholder and the time of its repayment,” not reduced to judgment against the director (Lewis v. Roberts, 267 U. S. 467), was held a liability “for a wrong done” and one that “does not arise out of any contractual obligation,” and consequently one not discharged in bankruptcy. See also 62 Am. L. R. 988. The liability of officers and directors now contained in G. L. c. 156, § 36 (G. L. [Ter. Ed.] c. 156, § 36), was dealt with in the same section of the public statutes, was enforced in the same way, and fell within the reasoning and principle of the Old Colony Boot & Shoe Co. case. That case was recognized as law, and a distinction between the liability of officers and directors in general and that of shareholders in a national bank or a trust company was taken, in Cunningham v. Commissioner of Banks, 249 Mass. 401, 424, 425. It was also cited with apparent approval in Union Market National Bank of Watertown v. Gardiner, 276 Mass. 490, 492, Continental Corp. v. Gowdy, 283 Mass. 204, 210, and Frank Kumin Co. Inc. v. Marean, 283 Mass. 332, 334. The statutory liability became attached to the contract between the corporation and the creditor in such a way that it could not be detached by subsequent legislation; but after all the liability is founded upon a statute and not “upon a contract” of the officer or director within the meaning of the bankruptcy act. Continental Corp. v. Gowdy, 283 Mass. 204, 210. In our opinion, the Old Colony Boot & Shoe Co. case governs the present case on the bankruptcy-point. It follows that the discharge in bankruptcy of the defendant Plimpton cannot avail him.

Decree affirmed with costs.