By no possibility can the commonwealth be RUGG, C. J. This is an action of conpresumed to have consented to be impleaded tract. The declaration contains two counts. in its own courts touching torts committed The first is upon a special contract printed by the employees of one of its officers acting in the margin.1 The second is for money beyond the scope of any authority conferred had and received. by law.

Judgment affirmed.

(224 Mass. 1)

PALMER v. GUILLOW.

(Supreme Judicial Court of Massachusetts. Suffolk. May 16, 1916.)

1. MONEY RECEIVED 3-ACTIONS-PROMISE TO PAY-SIMPLE LOAN."

An instrument whereby the borrower of money agreed to give the lender certain shares of stock in a corporation to be formed, and to set aside other shares, dividends from which should be used to repay the lender, did not constitute a "simple loan" on credit with the then present intent to repay in money, and will not support an action for money had and received. [Ed. Note. For other cases, see Money Received, Cent. Dig. § 6; Deç. Dig. 3.]

2. CONTRACTS 235 - CONSTRUCTION -CON

URE.

Where the parties knew that the promisor was working to perfect an invention, and the promisee loaned money for which the promisor agreed to give shares of stock in a corporation to be formed to build the machine, and to set aside other shares to repay the promisee from their dividends, and thereafter the promisor worked diligently to perfect the invention, but failed through no fault of his own, there was no failure of consideration which would support recovery of the amount of the loan.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 388-398; Dec. Dig. 83.]

4. SALES 21-FAILURE OF CONSIDERATION. If plaintiff pays defendant for property to which defendant has no title, there is failure

of consideration.

[Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 33-38; Dec. Dig. 21.]

5. CONTRACTS 83-FAILURE OF CONSIDER

ATION.

If plaintiff pays money to defendant for an agreement to perform acts which defendant to tally fails to perform, there is failure of consideration.

[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 388-398; Dec. Dig. 83.]

Exceptions from Superior Court, Suffolk County; Hugo A. Dubuque, Judge.

Action by Winfield H. Palmer against Louis E. Guillow, administrator of the estate of E. P. Hemenway. Judgment for plaintiff, and defendant excepts. Exceptions sustained, and judgment entered for defendant.

There was evidence tending to show that the plaintiff and Hemenway, the defendant's intestate (who will be called the defendant), were old friends; that the defendant, who was engaged in perfecting some machines, the invention of one Gosselin, applied to the plaintiff for $300 to defray his personal expenses until he could get some money out of the invention; that the plaintiff handed it to him and received in return the contract; that at its end above the signature were the words, "With interest at six per cent. from date hereof;" that through these words a line in ink was drawn by the defendant at the plaintiff's request, who told him he did not want interest if the money was to be returned and the stock given him; that there were thereafter frequent conversations between the parties about the machines; that the plan of the defendant and Gosselin was that, when the machines were made sufficiently efficient, a corporation to be called the Gosselin Company was to be organized to manufacture and sell them; that the machines were a failure, the corporation never was organized, and of course no stock was issued. The plaintiff testified that the "drift of" the agreement was expressed in the writing. The plaintiff testified that he did not talk with the defendant about the contract "because the company wasn't formed and he wasn't ready to pay it and I knew that." Gosselin, the inventor, testified that one of the machines had been substantially completed by Hemenway before his death, but that "on the other part, which was essential to the completed machines, Hemenway had not been able to accomplish much." The administrator of the defendant testified "that Hemenway worked diligently on the machines for several years after 1907, but that during the last two or three years of his life he worked on them much less; and that Hemenway, a short time before his death, had told him that the machines were a failure, that he could not make a success of them."

This evidence establishes that the writing expressed all the terms of the contract by which the plaintiff handed three hundred dollars to the defendant. The plaintiff does not testify to any other.

[1] It is necessary to decide what that

1 "$300. Boston, Mass., Apr. 1, 1907. "Received of Winfield H. Palmer three hundred dollars to be paid according to the following conditions in stock of the Gosselin Company and in cash. Said Palmer shall receive of me three hundred shares of the stock of the Gosselin Company and as further recompense for the loan and accommodaWm. P. Kelley and F. Chester Everett, tion I will set aside 1200 shares of my own holdings both of Boston, for plaintiff. Louis E. Guil-in said company, all the dividends on which shall be devoted to repaying said Palmer three hundred low, of Boston, for defendant. dollars in cash. E. P. Hemenway."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

writing means read in the light of the circumstances under which it was given. Plainly the $300 was not a simple loan. The money was not advanced by the plaintiff to the defendant upon the latter's credit with the then present intent and purpose of both that the money be repaid at some time in the future.

[2] The plaintiff did not receive an unconditional promise to be paid money. He was to be paid in stock of the Gosselin Company and in cash. But the cash was to be derived from one source alone, namely, from the divdends upon 1200 shares of the defendant's stock in the same company. That 300 shares of stock and the money derived from the dividends upon the other stock was the only payment to which the plaintiff was entitied under the contract. There is no provision for repayment to the plaintiff if the corporation is not formed and the stock is not issued. He is to be reimbursed only in one way and in no other. If the venture had been a success, the plaintiff would have been a sharer in its prosperity. He would have received 300 shares in stock and the original principal wholly returned out of the dividends on 1200 other shares. He made no contract for the return of the principal in the event of a failure of the scheme.

enable him to live while he was working for the success of a highly speculative project, and agreed to take his recompense out of that project when it reached the incorporation and dividend paying stage. The defendant used his best endeavors to bring the project to that stage, but failed. The time never has arrived and now, since the death of Hemenway, never can arrive when according to the terms of his contract the plaintiff is entitled to receive anything from the defendant. The real complaint of the plaintiff is not that the consideration for his contract has failed, but that the adventure on which he embarked has failed.

What has been said disposes of both counts in the plaintiff's declaration, which are for the same cause of action, without discussing the other defenses pleaded.

The exceptions must be sustained and in accordance with St. 1909, c. 236, judgment may be entered for the defendant. So ordered.

In re ALLIN.

(224 Mass. 9)

(Supreme Judicial Court of Massachusetts. Suffolk. May 16, 1916.)

1. ATTORNEY AND CLIENT 48-DISBARMENT PROCEEDINGS-VALIDITY.

Both parties knew that Hemenway was Where a petition was filed in superior court working to perfect the machines and make setting forth causes of disbarment, upon which issued an order of notice to appear in the usual them useful and salable, so that the corpo- form, signed by the clerk, and return showing ration to manufacture and sell them might personal service of a copy of the petition upon be organized and its stock have value. It respondent, although the order was not under was an implied condition of the contract that the seal of the court and did not bear the teste of the first justice, the process was in accordance Hemenway should use his faithful efforts to with a general practice, and not violative of complete the machines. If he had utterly Const. pt. 2, c. 6, art. 5, providing that writs failed in undertaking to perfect the ma- shall be under the seal of the court, bear the teste of the Chief Justice, and be signed by the chines, doubtless there would have been a clerk, or of Rev. Laws, c. 166, § 1, or of chapfailure of consideration for the contract. ter 167, §§ 15, 19, 20, 21, providing that actions But Hemenway did not refuse to go forward. at law, unless founded on special writs, original According to all the evidence, he labored dil-writs, or otherwise provided by statute, and subigently for almost six years in the perform-seal of the court, signed by the clerk, and bear penas on appeals in equity, shall be under the ance of his part of the contract. It was no fault of his that the corporation was not formed and its stock issued. The reason was that the venture, so far as he was concerned, failed in spite of all he could do.

the teste of its Chief Justice.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 64, 65, 68; Dec. Dig. 48.]

2. CONSTITUTIONAL LAW 249, 309(1)—DUE PROCESS OF LAW EQUAL PROTECTION OF THE LAWS.

[3-5] The evidence discloses no failure of consideration such as warrants recovery of his money by the plaintiff. There is a failure of consideration when a plaintiff pays a defendant for property sold to him by the defendant to which the latter has no title. Rice v. Goddard, 14 Pick. 293; Claflin v. Godfrey, 21 Pick. 1, 9. There is a like fail-tection of the laws and due process of law. ure of consideration when money is paid by a plaintiff to a defendant for an agreement by the defendant to perform acts which he totally fails to perform. Briggs v. De Peiffer, 214 Mass. 52, 58, 100 N. E. 1085. Doubtless there may be other classes of cases of total failure of consideration. But the case at bar is not of that kind. The plaintiff gave his money to the defendant to be used to

Since an attorney at law is liable to be dealt with in a summary way, and a proceeding to remove him is not by writ, but by an order to show cause, where an order served on the respondent in a disbarment proceeding did not comply with the requirements of law governing writs, the process was not violative of the federal Constitution, guaranteeing equal pro

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 710, 929, 930; Dec. Dig. 249, 309(1).]

3. ATTORNEY AND CLIENT

PROCEEDINGS-FINDINGS.

56-DISBARMENT

In disbarment proceedings, a finding that respondent "has wittingly promoted and sued a groundless suit, has done falsehood in court. and has not conducted himself as an attorney within the courts with due fidelity to his client," and, "while the first two of these specifications

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

MENT PROCEEDINGS REVIEW.

have appeared from the evidence, they are not [ 10. ATTORNEY AND CLIENT 57 DISBARmade the ground for an accusation in a petition filed, but the third specification is the basis of the proceedings, and is abundantly established," the order for disbarment, being confined to the grounds specified, was not erroneous; the whole transaction in question being a proper matter of investigation.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. 88 76, 79; Dec. Dig. 56.]

4. ATTORNEY AND CLIENT 53(2) - DISBARMENT PROCEEDINGS - EVIDENCE SUFFICIENCY.

In a disbarment proceeding, where defendant agreed to an entry of judgment against his client in consideration of an option on real estate, although he had original authority to dispose of the case as he thought best, evidence held sufficient to warrant a finding that there had been a want of fidelity to his client in his conduct as attorney toward her.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 75; Dec. Dig. 53(2).];

In a disbarment proceeding, whether suspension from practice or an absolute removal was required, in order that the demands of justice might be met and due protection afforded the plaintiff, presents no question of law for review.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 81, 82; Dec. Dig. ~~57; Appeal and Error, Cent. Dig. § 576.]

Exceptions from Superior Court, Suffolk County; Wm. Cushing Wait, Judge. Disbarment proceedings by the Bar Association of Boston against Horatio N. Allin, an attorney at law. Order for disbarment, and respondent excepts. Exceptions overruled.

Geo. D. Burrage, of Boston, for prosecutor. Horatio N. Allin, of Boston, pro se.

5. ATTORNEY AND CLIENT 53(2)-DISBAR- disbarment of an attorney at law.

RUGG, C. J. This is a proceeding for the

MENT PROCEEDINGS
CIENCY.

EVIDENCE

SUFFI

In a disbarment proceeding, evidence, sufficient to warrant a finding of want of fidelity toward his client on the part of the respondent, held to justify a further finding that the attorney has been guilty of gross misconduct in his office.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 75; Dec. Dig. 53(2).] 6. ATTORNEY AND CLIENT 56-DISBARMENT PROCEEDINGS-ORDER.

In a disbarment proceeding, where defendant had been fully heard, there being no occasion for additional hearing on the precise order to be entered in view of the findings, and the entry of the order not being like the imposition of sentence in a criminal case, entry of the order for disbarment after the finding of facts, without further notice to the attorney, was not

[1, 2] 1. The motion to dismiss was denied and overruled rightly. It was based on the ground that the process employed in bringing the matter to the attention of the court was not in accordance with the Constitution and statutes of this commonwealth and with the clauses of the Constitution of the United States guaranteeing due process of law and equal protection of the laws, in that the notice issued to him was not under the seal of the court and did not bear the teste of the first justice of the court. Chapter 6, article 5, of the Constitution; R. L. c. 166, § 1; Id. c. 167, §§ 15, 19, 20, 21. A petition was filed in the superior court setting forth certain causes for disbarment, upon which issued an order of notice to appear in the usual form signed by the clerk. The return of service shows that a copy of the petition with the

order of the court thereon was delivered in hand to Mr. Allin. This was in accordance with a general practice.

The provisions of Rev. Laws, c. 173, §§ 70, 109, providing that judgment shall not be enA proceeding for the removal of an attor tered unless exceptions filed and allowed are adjudged immaterial, frivolous, or intended for ney at law from his office is not instituted, delay, do not apply to the entry of an order for prosecuted or forwarded by a writ. It is not disbarment after the finding of facts in a disbar-"founded on legal process according to the ment proceeding.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 76, 79; Dec. Dig. 56.]

8. JUDGES 45-DISQUALIFICATION-DISBARMENT PROCEEDINGS.

A judge of the superior court is not disqualified to sit in disbarment proceedings instituted by the Boston Bar Association by reason of his membership in the association.

[Ed. Note. For other cases, see Judges, Cent. Dig. §§ 208-212; Dec. Dig. 45.]

*

*

signification of the words 'per legem terræ' as
used in Magna Charta," and in the Constitu-
tion and statutes. "At common law an at-
torney was always liable to be dealt with in
No complaint, in-
a summary way.
dictment or information ever was necessary
as the foundation of such proceedings. Usu-
ally they are commenced by rule to show
cause, or by an attachment or summons to
Sometimes they are found-
ed on an affidavit of the facts * * *: in
other cases, by an order to show cause why
he should not be stricken from the roll; and
when the court judicially know of the mis-
conduct of an attorney, they will of their
own motion order an inquiry to be made
* * * without issuing any process what-
ever." In re Randall, Pet'r, 11 Allen, 473,
479. In the respect that no writ or process

answer.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

TEELE v. ROCKPORT GRANITE CO. (two cases).

(Supreme Judicial Court of Massachusetts. Suffolk. May 16, 1916.)

1. CORPORATIONS 370(1) - SCOPE OF PowERS-IN GENERAL.

A corporation has power to do such business only as it is authorized to do by its charter, and cannot usurp functions not granted to it, nor stretch its lawful franchise beyond the limits of its reasonable intendment; its main business must be confined to those operations appertaining to the general purpose for which it was organized and which are defined in its charter.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1511-1513, 1516; Dec. Dig. 370(1).]

2. CORPORATIONS 374- INCIDENTAL PowERS-CONTRACTS.

A corporation may enter into contracts and engage in operations which, although not expressly named in its charter, are reasonably incident to or subsidiary to its main purpose and business and necessary or expedient in the protection and management of its property.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1517, 1518; Dec. Dig. 374.] 3. CORPORATIONS 172-RIGHTS OF STOCKCHANGE IN THE NATURE OF

HOLDERS

BUSINESS'-STATUTE.

the corporation's business and who thereafter asserted her rights under the statute, was not because she may have profited by some acts of barred from demanding payment for her stock the defendant before the amendment but afterwards included in it.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 637-639; Dec. Dig. 172.] ~3(9) WITHDRAWAL 5. MANDAMUS STOCKHOLDER-CHANGE OF BUSINESS-BILL

IN EQUITY.

OF

Under St. 1903, c. 437, § 44, giving a stockholder in any corporation which shall have duly voted to change the nature of its business and who at such meeting has voted against such action, the right to demand payment for the stock, a bill in equity, and not a petition for a writ of mandamus, is the appropriate remedy. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 26; Dec. Dig. 3(9).]

Report from Supreme Judicial Court, Suffolk County; Henry K. Braley, Judge.

Suit in equity by Mary P. Teele (Arthur P. Teele, executor) against the Rockport Granite Company, and petition for writ of mandamus by the same plaintiff against the same defendant. On report. Interlocutory decree for plaintiff in equity directing the appointment of an appraiser by the defendant upon whose finding final decree may be entered for the amount ascertained, and petition for the writ of mandamus dismissed.

Frank L. Simpson and Geo. E. Richardson, both of Boston, for petitioner. Frederick H. Tarr, of Gloucester, for respondent.

RUGG, C. J. These two proceedings, one a suit in equity and the other a petition for a writ of mandamus, are brought by the plaintiff as stockholder in the defendant cor

poration to compel compliance by it with the provisions of St. 1903, c. 437, § 441, on the ground that the defendant corporation has voted "to change the nature of its business." The purposes for which the defendant was incorporated in 1864 were:

"The quarrying and preparing for the market of stone in the towns of Rockport and Gloucester in the county of Essex and commonwealth of Massachusetts, and for selling the same.

In October, 1914, in accordance with section 40, c. 437, St. 1903, its stockholders duly voted to amend its corporate purposes so

Under St. 1903, c. 437, § 44, providing that a stockholder in any corporation which has duly voted to change the nature of its business, who, at the meeting of the stockholders, has voted against such action, may, within 30 days after the date of such meeting, demand of the corporation payment for his stock, and if its value or the award of appraisers is not paid may recover it in an action of contract, a vote of a corporation incorporated for the quarrying of stone preparing it for the market and selling it, which pursuant to section 40, voted to amend its corporate purposes to include the quarrying and preparing of stone for the market to buy, sell, and deal in it, to acquire or lease quarries or other lands, to contract for the construction, repair of buildings, roads, docks, breakwaters, 2 Section 44. A stockholder in any corporation etc., so far as such contracts might be advan- which shall have duly voted to sell, lease or extageous for placing its product, to lay out and change all its property and assets or to change the nature of its business in accordance with the proconstruct railroads, telephone and telegraph visions of section forty, who, at the meeting of lines, to construct, purchase, or own vessels so stockholders, has voted against such action may, far as necessary to any purpose of the company within thirty days after the date of said meeting, and as incidental to its purposes, and to deal in make a demand in writing upon the corporation general merchandise and the capital stock of oth-the stockholder cannot agree upon the value of the for payment for his stock. If the corporation and er companies, both within and without the com- stock at the date of such sale, lease, exchange or monwealth, taking such purposes collectively, change, such value shall be ascertained by three was a "change in the nature of its business" so disinterested persons, one of whom shall be named as to entitle a stockholder to payment for his by the stockholder, another by the corporation and stock. the third by the two thus chosen. The finding of the appraisers shall be final, and if their award is not paid by the corporation within thirty days after it is made, it may be recovered by the stockholder from the corporation in an action of contract. Upon payment by the corporation to the stockholder of the agreed or awarded price of his stock, the stockholder shall forthwith transfer and assign the stock certificates held by him at, and in accordance with, the request of the corporation.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 637-639; Dec. Dig. 172.] 4. CORPORATIONS 172-RIGHTS OF STOCKHOLDERS CHANGE OF BUSINESS-PAYMENT FOR STOCK-ESTOPPEL.

In such case the stockholder who did not directly or indirectly assent to the vote to change

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 112 N.E.-32