Marlborough Ass'n v. Peters

60 N.E. 396, 179 Mass. 61, 1901 Mass. LEXIS 518

• Court: Massachusetts Supreme Judicial Court
• Decided: May 22, 1901
• Status: Published

Opinion

Holmes, C. J.

This is an action by a corporation formed under Pub. Sts. c. 115, against a defaulting treasurer. There was no question of the default, and no defence upon the merits, but the defendant asked for a ruling that the action was brought prematurely, since it did not appear that the defendant was not still treasurer and entitled to hold the money. This ruling was refused, and the defendant excepted.

Pub. Sts. c. 106, § 24, providing for officers holding over until their successors are elected, does not prevent the termination of an office by mutual understanding before a permanent successor is appointed. The plaintiff, after electing a new treasurer and his refusal to serve, elected one Gray temporary treasurer for the purpose of effecting a settlement with the defendant. Gray wrote to him and received promises, and afterwards Gray and the officers of the plaintiff made a demand upon the defendant for the plaintiff’s property. The dealings plainly implied an agreement of both sides that the defendant’s office was at an end, and warranted a finding to that effect. Furthermore, a treasurer holding money of a corporation is bound to keep it distinct, and, if he appropriates it and makes himself a debtor by wrong instead of an agent, he may be sued by the corporation at once, whether his office continues or not.

Exceptions overruled.