James Stewart & Co. v. National Shawmut Bank of Boston

. MORTON, Circuit Judge.

The plaintiff brought suit against the defendant on a written contract. Jurisdiction rests on diversity of citizenship. At the conclusion of the evidence the District Judge ruled that the plaintiff was not entitled to recover, and directed a verdict for the defendant. The plaintiff has appealed.

There is no controversy about the facts. The plaintiff is a construction company engaged in the business of erecting buildings. The defendant is, as its name implies, a national bank. The contract in question was for the erection of a .building by the plaintiff on land owned by the Washington Central Trust in Washington, D. C. It recited in its opening paragraph that:

“This agreement made the fifteenth day of September, in the year Nineteen Hundred and Twenty-six, by and between James Stewart & Co. Inc., a New York Corporation, licensed to do business in the District of Columbia, hereinafter called the Contractor, and the Trustees of Washington Central Trust, under Declaration of Trust, dated June 1, 1925, and recorded July 17, 1925, as Instrument #70 among the Land Records of the District of Columbia, hereinafter called the Owner. * * * ”

The declaration of trust contained the following provision:

“(13) In every written contract made by the Trustees reference shall be had to this instrument and any person contracting with the Trustees shall look to the trust premises and not to the Trustees individually for payment ‘ of any debt, note, mortgage, judgment or decree or any other obligation or of any money that may otherwise become due and payable by reason of the failure on the part of the said Trustees to perform such contract in whole or in part or for any other cause.”

The defendant, although not an original signer of the declaration of trust, was, after its execution and before the execution of the plaintiff’s contract, duly elected a trustee under this declaration of trust, and duly qualified as such under its terms. The other trustee was Robert M. Burnett, who has since died. No one in behalf of the plaintiff ever looked at the declaration of trust before the execution of the contract, nor was it shown to the plaintiff, or anybody representing it, before such execution; but it was accessible to them on the public record. The plaintiff has duly performed its contract. Of the amount due to it there remains unpaid the sum of $196,297.48, with interest from January 30, 1928. The contract was signed:

“Washington Central Trust,

“Robert M. Burnett, Trustee.

“The National Shawmut Bank,

“F. A. Carroll, V. R,

“R. W. Hill, Asst. Trust Officer.”

The Washington Central Trust was a Massachusetts trust with transferable shares, a common type of business organization. It was the beneficial owner of the land on which the building was erected. The declaration of trust under which it was organized was recorded in the land records of the District of Columbia, as stated in the contract.

The question before us is whether the defendant was individually liable on this contract. The form in which the contract is drawn and signed shows that it was made solely upon the business of the trust, and that the signatures of Burnett and of the defendant were affixed only in their capacity as trustees. Duvall v. Craig, 2 Wheat. 45, 56, 4 L. Ed. 180; Carr v. Leahy, 217 Mass. 438, 440, 105 N. E. 445; Baker v. James, 280 Mass. 43, 181 N. E. 861. The fact that a person contracts as a trustee does not relieve him from personal liability, nor restrict his liability to the amount of the trust estate, unless he stipulates to that effect. Philip Carey Co. v. Pingree, 223 Mass. 352, 111 N. E. 857; Larson v. Sylvester, 282 Mass. 352, 185 N. E. 44.

The decisive point is whether the plaintiff was duly apprised of the limitation upon the defendant’s liability and must be deemed to have assented' to it. It depends primarily on whether the plaintiff was put upon its notice of the contents of the trust agreement. A large contracting company - — the building cost over $1,500,000 — can hardly have been unfamiliar with the general characteristics of real estate trusts. The plaintiff knew that it was contracting with the trustees of such a trust, i. e., with persons acting for others in a fiduciary and representative capacity; that the defendant was a national banking association of limited powers, and that their powers and duties as trustees were defined in an instrument which was explicitly referred to in the contract and was a matter of public record. The reference to the declaration of trust in the contract was not casual or accidental, it was plainly for some important purpose; it is at the very beginning of the contract and is obviously the foundation on which the owner’s side of it rests. A national bank would hardly be expected as trustee to undertake for its beneficiaries such a large individual obligation of this character, even if it had the authority to bind itself as an individual to such a contract under 12 USCA § 248 (k). Was the plaintiff at liberty to ignore the fact that the declaration of trust was open to its inspection as a part of a public record, and to claim that it was unaware of the limitation on the personal liability of the trustees therein contained and did not agree thereto?' We do not think so. On the contrary, we think that the explicit reference to the declaration of trust, and to the public record of it where it could be found, put the plaintiff on its notice to ascertain whether its provisions affected its contract with the defendant, and that the plaintiff was bound by it, at least, to the extent to which it imposed limitations on the powers or liabilities of the persons who signed on behalf of the trust. The case is clearly distinguishable from those in which contracts were made by trustees in which there was no such explicit reference to the declaration of trust.

The judgment of the District Court is affirmed, with costs.