Commercial Brewing Co. v. McCormick

Massachusetts Supreme Judicial Court

Commercial Brewing Co. v. McCormick

114 N.E. 812, 225 Mass. 504, 1917 Mass. LEXIS 902

CourtMassachusetts Supreme Judicial Court

DecidedJanuary 5, 1917

StatusPublished

Cited by6 cases

This text of 114 N.E. 812 (Commercial Brewing Co. v. McCormick) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Commercial Brewing Co. v. McCormick, 114 N.E. 812, 225 Mass. 504, 1917 Mass. LEXIS 902 (Mass. 1917).

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Opinion

Pierce, J.

The purchase of stock by the National Shawmut Bank in 1908 and its transfer to Henry F. Smith, — an employee of the bank and friend of the defendant, — at the request of the defendant with the individual approval of a majority of the persons who with him constituted the directorate of the Commercial Brewing Company, the indorsement in blank and delivery of stock and proxies to the defendant for the purpose of ensuring the annual election of a board of directors whose votes would support and sustain him in retaining the control of the management and the direction and determination of the policies of the corporation, until an opportune time came for the corporation openly to acquire and pay for the stock, were inoperative, — even if conceded to be beneficial to the corporation, — to bind the corporation to pay for the stock on demand and tender of the certificates or to raise an implied promise binding the corporation to save the defendant harmless upon his guarantee of the purchase price to the bank, for the reason that the purchase, transfers and plan were always intentionally kept secret from the minority of the board of directors and were assented to and approved by the majority of the board acting individually and not collectively. Buttrick v. Nashua & Lowell Railroad, 62 N. H. 413. National Bank v. Drake, 35 Kans. 564. Cook on Corporations, (7th ed.) § 713.

The vote of the board of directors in 1912, whereby the treasurer, the defendant, was authorized and empowered to purchase the stock “now held by Henry F. Smith,” was not in terms a ratification of the purchase of stock and of the plan to.use it in furtherance of the policies of the defendant until an opportune time came to transfer it to the corporation; nor can the vote by implication be held to ratify and adopt the irregular action of the individual majority members of the board of 1908, because a [510]*510minority of the board authorizing the purchase of the Smith stock were ignorant of, and intentionally kept in ignorance of, the purchase and the scheme and plan for the use and final disposition of the stock assented to, adopted and finally carried out by the individual members, who in 1908 as in 1912 constituted a majority of the members of the board of directors.

A majority only of the board of directors knew that since 1908 the treasurer, the defendant, had held the legal title to the stock standing on the stock books of the corporation in the name of Henry F. Smith by transfer and delivery of the certificates of stock indorsed in blank by Smith. St. 1910, c.' 171, §1. Bellows Falls Power Co. v. Commonwealth, 222 Mass. 51, 59.

The vote, presumptively, only authorized a purchase of the stock described at the fair market value, and the concealment of the fact that it was owned by the treasurer rebuts any inference that it was intended thereby to pay the price of its purchase in 1908 and iifterest thereon. Malden & Melrose Gas Light Co. v. Chandler, 209 Mass. 354. It is not disputed that the treasurer, the defendant, purchased the stock under the authority of the vote paying therefor $12,776.75 in excess of its fair market value, nor is it denied that such act was illegal if not excused and warranted by the facts and circumstances disclosed.

Decree affirmed with costs.

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Pierce, J.

The purchase of stock by the National Shawmut Bank in 1908 and its transfer to Henry F. Smith, — an employee of the bank and friend of the defendant, — at the request of the defendant with the individual approval of a majority of the persons who with him constituted the directorate of the Commercial Brewing Company, the indorsement in blank and delivery of stock and proxies to the defendant for the purpose of ensuring the annual election of a board of directors whose votes would support and sustain him in retaining the control of the management and the direction and determination of the policies of the corporation, until an opportune time came for the corporation openly to acquire and pay for the stock, were inoperative, — even if conceded to be beneficial to the corporation, — to bind the corporation to pay for the stock on demand and tender of the certificates or to raise an implied promise binding the corporation to save the defendant harmless upon his guarantee of the purchase price to the bank, for the reason that the purchase, transfers and plan were always intentionally kept secret from the minority of the board of directors and were assented to and approved by the majority of the board acting individually and not collectively. Buttrick v. Nashua & Lowell Railroad, 62 N. H. 413. National Bank v. Drake, 35 Kans. 564. Cook on Corporations, (7th ed.) § 713.

The vote of the board of directors in 1912, whereby the treasurer, the defendant, was authorized and empowered to purchase the stock “now held by Henry F. Smith,” was not in terms a ratification of the purchase of stock and of the plan to.use it in furtherance of the policies of the defendant until an opportune time came to transfer it to the corporation; nor can the vote by implication be held to ratify and adopt the irregular action of the individual majority members of the board of 1908, because a [510]*510minority of the board authorizing the purchase of the Smith stock were ignorant of, and intentionally kept in ignorance of, the purchase and the scheme and plan for the use and final disposition of the stock assented to, adopted and finally carried out by the individual members, who in 1908 as in 1912 constituted a majority of the members of the board of directors.

A majority only of the board of directors knew that since 1908 the treasurer, the defendant, had held the legal title to the stock standing on the stock books of the corporation in the name of Henry F. Smith by transfer and delivery of the certificates of stock indorsed in blank by Smith. St. 1910, c.' 171, §1. Bellows Falls Power Co. v. Commonwealth, 222 Mass. 51, 59.

The vote, presumptively, only authorized a purchase of the stock described at the fair market value, and the concealment of the fact that it was owned by the treasurer rebuts any inference that it was intended thereby to pay the price of its purchase in 1908 and iifterest thereon. Malden & Melrose Gas Light Co. v. Chandler, 209 Mass. 354. It is not disputed that the treasurer, the defendant, purchased the stock under the authority of the vote paying therefor $12,776.75 in excess of its fair market value, nor is it denied that such act was illegal if not excused and warranted by the facts and circumstances disclosed.

Decree affirmed with costs.

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114 N.E. 812, 225 Mass. 504, 1917 Mass. LEXIS 902, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commercial-brewing-co-v-mccormick-mass-1917.

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