Worster v. Stone

Braley, J. The plaintiff has succeeded by force of the assign [525] ment to whatever rights his assignor, Wallace N. Wright, had to compensation. R. L. c. 173, § 4. Andrews v. Tutile-Smith Co. 191 Mass. 461. It is apparent from his undisputed testimony that Wright was employed by the corporation to make sales of its treasury stock from time to time at a price to be designated by the company, for which he was to receive a commission of twenty per cent of the selling price. But it is also uncontroverted that the defendants, who with himself constituted the board of directors, held more than one half of the capital stock under an agreement in trust, to vote on it, to receive the dividends, and after deducting the expenses of the trust, to pay the balance proportionately among the certificate holders representing the interests of the stockholders who had formed the trust. The assignor knew of this division as well as that the trust stock was not on the market, while the treasury stock must be disposed of to provide working capital. It was with this understanding, and under his contract of employment as the jury could find, that he solicited one Gaunt to invest in treasury stock. The interviews shown by his own evidence which took place between him and the defendant Frank E. Richards, vice-president and manager of the company, and his demonstrations to- Gaunt of the operations of the machines the corporation had been organized to manufacture were all for the sole purpose of inducing Gaunt to purchase treasury stock. It is not even contended to the contrary by the plaintiff. It appears, however, that these efforts were fruitless, for Gaunt declined to buy unless he could purchase trust stock which would give bim the right of participation in the corporate management. But as Gaunt finally bought four hundred shares of the trust stock, which were transferred from their respective holdings by the defendants in accordance with the provisions of the trust agreement, the plaintiff contends that a commission on this sale at the same rate as if it had been treasury stock had been earned. The evidence at most goes no further than to show that during the negotiations the purchaser through information furnished by Wright knew of the different classes of stock, and, if Wright was instrumental in introducing the purchaser to Richards, it was only with a view to the actual sale of treasury stock for which he had been employed. It is insufficient to ground a claim for a com [526] mission, that the customer was able and willing to buy any part of the trust stock if it could be procured. Loud v. Hall, 106 Mass. 404, 407. Dowling v. Morrill, 165 Mass. 491. Fitzpatrick v. Gilson, 176 Mass. 477, 478. Munroe v. Taylor, 191 Mass. 483, 485. The subsequent dealings by the defendants either jointly or severally with Gaunt were on the plaintiff’s own showing wholly independent of what Wright previously had done, and the case at bar is not one where the principal goes behind his agent and deals with the proposed customer to escape payment of a commission as in Cadigan v. Crabtree, 186 Mass. 7. The plaintiff having failed to prove any joint or several contract, either express or implied, to pay a commission for the sale of the trust stock, the verdict for the defendants was rightly ordered, and the question of misjoinder need not be considered. Exceptions overruled.