Crowley v. Mutual Finance Corp.

De Courcy, J. The judge of the Superior Court reported [261] the case to this court for determination under G. L. c. 231, § 111, without making any decision thereon. It was said in Atlantic Maritime Co. v. Gloucester, 228 Mass. 519, 521, 522: “If material facts, whether primary or ultimate, express or inferential, are omitted from facts agreed and submitted, it becomes the duty of the Superior Court judge to find those facts before he can report under the statute. Even though the ultimate facts may rest upon inferences, the duty of determining what inferences are the most rational, and of drawing such inferences from the other facts agreed, rests on the Superior Court judge before he can report the case. If such inferences need to be drawn in order to reach the ultimate essential facts, then there has not been 'agreement as to all the material facts’ by the parties within the meaning of those words in the statute.” The plaintiff seeks to recover money paid by him, while he was a minor, for six shares of preferred stock and a trust certificate for three shares of common stock of the defendant corporation. In order to prevail he must show that his contract was with the Mutual Finance Corporation. No such fact is agreed upon in the written “ Case Stated.” It well may be that the trial judge could have inferred this essential fact from the form of the subscription agreement, the payment to the defendant of part of the purchase money, the receipt from it of the stock certificates and of dividends. But he did not make that inferential finding. It is not an appropriate function of the full bench to make that finding of fact, unless as matter of law but one conclusion can be reached upon the case stated. Such is not the situation here presented. It appears that, in pursuance of a vote of the directors, a written agreement was entered into, by which Henry V. Greene undertook to sell the entire issue of sixty thousand shares of preferred stock; retaining all he might receive therefor in excess of $51.25 per share. As part of the agreement there was to be issued to said Greene forty thousand shares of common stock, of which he obligated himself to give to purchasers of preferred stock a maximum of thirty thousand shares as a bonus. The agreement is referred to as one of "underwriting.” A voting trust agreement was thereafter entered into between Greene and certain other stockholders, under which he placed in trust twenty-two thousand two hundred and seventy-five shares of the common stock, substantially all of which [262] came from said forty thousand shares. Greene, or his assignee, the H. V. Greene Co. Inc. offered to the public “blocks” of two shares of preferred stock in the defendant corporation and one of the stock trust certificates. The plaintiff bought through one J. Gosselin, a salesman employed by H. V. Greene Co. Inc. Without further recital of the facts, it seems apparent from the record that we cannot say the only inference that can be drawn from the agreed facts is that the plaintiff dealt with the defendant, through its authorized agent. Whether that inference should be drawn, or whether Greene sold the stock as an underwriter, or as an independent contractor, or otherwise, is a question of fact, to be decided by the trial judge. If it should be found that the plaintiff’s contract was made with the defendant, through its selling agent, further findings of fact may be necessary in order to determine whether the plaintiff can retain the dividends received by him while still a minor. Other questions sought to be raised by the defendant are disposed of by the case of Godfrey v. Mutual Finance Corp. ante, 197. The report must be discharged, and the case remanded to the Superior Court for further proceedings in accordance with this opinion. So ordered.