Massachusetts Breweries Co. v. Hills

Morton, J. This is an action to recover for beer and ale alleged to have been sold by the plaintiff to the defendant. The defendant filed a declaration in set-off. The case was heard [531] in the Superior Court upon agreed facts, and the judge found for the defendant on the plaintiff’s declaration, and for the plaintiff on the declaration in set-off. The plaintiff appealed. From the agreed facts it appears that one Marotta and one Stucke were carrying on the business of licensed liquor dealers in Boston under the style of Frank Marotta and Company under licenses granted by the police commissioners of Boston. Stucke had no interest in the licenses or the business, but was an employee of the American Brewing Company till that company with others was consolidated into the Massachusetts Breweries Company when he became an employee of the Breweries Company. In May, 1900, Marotta was largely indebted to various persons, firms and corporations including the American Brewing Company, the Roessle Brewery, and the Continental Brewing Company, and was unable to pay for the licenses which were granted to the firm of Frank Marotta and Company for the year beginning May 1, 1900. Thereupon the three companies expressed a willingness to advance the funds necessary to pay for the licenses upon being secured therefor, and the sealed instrument of May 14,1900, was accordingly executed and delivered by Marotta to Niles, and the companies advanced the funds necessary to pay for the licenses. Niles accepted the conveyance and the trusts therein contained upon the express agreement that he could retire at any time by assigning the property upon the same trusts to some suitable person, and the acceptance of the trusts by such person, and that he should not be personally liable for any of his acts done under the conveyance except for wilful default or neglect. On November 15, 1900, Niles executed to the defendant an instrument by which the defendant succeeded to all the right, title and interest of Niles in the premises. The defendant accepted the conveyance and the trusts therein referred to upon the same terms and conditions as Niles had accepted them. The plaintiff contends that the effect of these conveyances was to constitute Marotta the agent of the defendant, and to make the defendant personally liable for the goods bought by Marotta in carrying on the business after the execution of the instrument of May 14, 1900. But it seems to us plain that the scope and effect of that instrument were to convey the property therein described to Niles [532] and his successor in the trust as collateral security for Marotta’s debts including the sums advanced by the three brewing companies to pay for the licenses, and upon the trusts therein set forth, and to constitute Niles or his successor mortgagee and trustee and not the proprietor of the business. The business is spoken of throughout the instrument as Marotta’s business, and he agrees to conduct it in an orderly and economical manner, subject to the directions of the trustee. He covenants with Niles and his successor that he will give his “ whole time and attention and best efforts to carrying on my said business carefully and economically under his [the trustee’s] direction,” that he will pay for all purchases in cash as far as possible, that he will keep accurate books of account, and that he will account to said Niles at least once a week for all moneys received or paid out by him less a salary of §25 a week. It is manifest that the accounting is to be to Niles or his successor as trustee and not as the owner of the business ; — the provision as to salary being a prudent arrangement for all concerned. The conveyance is expressly declared to be “ as collateral security for the payment of my debts in the order hereinafter named, and the performance by me of the covenants hereinafter contained to be by me performed.” Then follows a statement of the order in which payment is to be made. The trustee or his successor is authorized “to sell at public auction or private sale and without notice to me, all my said personal property, good will, stock in trade, and licenses upon becoming satisfied that I am losing money in my business, or upon my making a breach of any of the covenants hereinafter contained to be by me performed,” which is inconsistent with ownership on the part of the defendant or Niles. The whole tenor of the instrument is at variance with the view that Marotta was the defendant’s agent, and so also, so far as appears, is the conduct of the parties. For aught that appears, Marotta bought and paid for the goods. Neither the defendant nor Niles so far as appears ever ordered any goods, or were consulted in the ordering of any, or paid any of the bills. There is nothing to show that the goods were charged to them, or that bills were made out to them, or that credit was given to any one except Marotta. [533] We see no ground on which it can be fairly contended that Marotta was the agent of the defendant or of Niles. In the case of Sartwell v. Frost, 122 Mass. 184, it distinctly appeared that the defendants were carrying on the business, and that the purchasers of the goods were their agents. Judgment affirmed.