Home LOUIS J. CACCAVARO & another [Note 1] vs. KINKADE & COMPANY, INC.

4 Mass. App. Ct. 796

March 26, 1976

Under the only two counts still viable, the plaintiffs, each the owner of fifty per cent of the capital stock of C.I.A. Insurance Agency, Incorporated (CIA), seek to recover damages from the defendant Kinkade & Company, Inc. (defendant) by reason of the defendant's alleged breach of an oral agreement under which the plaintiffs were to sell and the defendant was to purchase all the assets of CIA as well as all the plaintiffs' stock therein. The plaintiffs appear to have confused their individual identities as stockholders in CIA with the separate corporate identity of CIA. See Star Brewing Co. v. Flynn, 237 Mass. 213 , 217 (1921); Berry v. Old South Engraving Co. 283 Mass. 441 , 451 (1933); M. McDonough Corp. v. Connolly, 313 Mass. 62 , 66 (1943). Any cause of action for breach of an agreement to purchase the assets of CIA belonged to CIA rather than the plaintiffs (see Smith v. Hurd, 12 Met. 371 , 385, 386 [1847]; Converse v. United Shoe Mach. Co. 185 Mass. 422 , 423 [1904]; Hayden v. Perfection Cooler Co. 227 Mass. 589 , 591 [1917]; Mendelsohn v. Leather Mfg. Corp. 326 Mass. 226 , 237 [1950]) and passed to CIA's trustee in bankruptcy under Section 70(a) (6) of the Bankruptcy Act (11 U.S.C. Section 110[a][6]) long prior to trial. Compare Ames v. American Tel. & Tel. Co. 166 F. 820, 823, 824 (D. Mass. 1909). Any cause of action for breach of an agreement to purchase either plaintiff's stock in CIA was barred by the provisions of the Statute of Frauds found in G. L. c. 106, Section 8-319, which had been specifically pleaded by the defendant. It was agreed that no writing had been signed by or in behalf of the defendant and that no stock had been delivered to it; there was no evidence from which it could have been found that the case fell within (c) or (d) of Section 8-319. The defendant's motion for the entry of verdicts in its favor on counts 1 and 2 should have been allowed; judgment is to be entered for the defendant on those counts; to clear the record, judgment is also to be entered on the verdicts returned on the other six counts.

So ordered.


FOOTNOTES

[Note 1] Mary T. Caccavaro.

Home COMMONWEALTH vs. JAMES M. COWAN.

4 Mass. App. Ct. 796

March 26, 1976

This is a report from the Superior Court (G. L. c. 211A, Section 10; see G. L. c. 278, Section 30A) of various questions concerning the constitutionality of the provision in G. L. c. 90, Section 7, requiring that an operator of a motorcycle wear protective headgear. The statute was held to be "a valid exercise of the police power" in Commonwealth v. Howie, 354 Mass. 769 (1968), and that case is, of course, binding on us. The first of the reported

Page 797

questions, and the one emphasized in the defendant's brief, is whether that provision of the statute "results in a denial to the defendant of his right of privacy . . . ." This issue is not explicitly mentioned in the opinion in the Howie case, but we have examined the original papers in that case and find that the same issue was raised there by the defendant, who quoted from Griswold v. Connecticut, 381 U.S. 479, 493 (1965) (Goldberg, J., concurring), and from Mr. Justice Brandeis' classic dissent in Olmstead v. United States, 277 U.S. 438, 478 (1928). We cannot assume that the Supreme Judicial Court overlooked this contention in sustaining the statute. We therefore hold the statute constitutional on the authority of the Howie case, and answer the questions accordingly.

So ordered.