Wilda Publishing Company and D'Annolfo, individually and as trustee of the Mark-Phillip Trust, appeal from judgments in favor of Equilease for the balance due on an equipment lease. We affirm the judgments against Wilda and D'Annolfo individually, but reverse the judgment against D'Annolfo "as trustee." 1. The only argument advanced by Wilda and D'Annolfo individually is that the judge erred in refusing to instruct the jury on Equilease's duty to mitigate damages. However, the judge could have viewed the "lease" as a conditional sale of equipment, as the lessees had the option of purchasing the equipment for one dollar at the end of the lease term. See G. L. c. 106, Section 1-201(37). Henson, Secured Transactions Section 3-12, at 28-29 (1973). D'Annolfo and Wilda cite no authority, and we have found none, indicating that when equipment has been sold to and accepted by a purchaser who then repudiates the sale, a seller has an obligation to repossess the equipment and resell it to mitigate damages. To the contrary, the seller may sue for the price of the equipment under G. L. c. 106, Section 2-709, the remedy elected by Equilease. 2. In entering judgment against D'Annolfo in his representative capacity "as trustee," the court purported to bind the trust assets. However, D'Annolfo was but one of four trustees of the Mark-Phillip Trust, and no other trustee was joined as a party defendant. By the terms of the trust the trustees held the trust assets jointly, and approval by a majority of the trustees was required in all matters affecting the administration or execution of the trust. Where several trustees hold property jointly, all are necessary parties to an action concerning it. Bitker v. Hotel Duluth Co., 83 F.2d 721, 723, cert. denied, 299 U.S. 577 (1936). Upham v. Boaz Well Serv., Inc., 357 S.W.2d 411, 419 (Tex. Civ. App. 1962). Loring, Trustee's Handbook, Section 30, at 102 (Farr rev. 1962). That becomes particularly apparent here where the plaintiff's action was based in part upon its assertion that the trustees had ratified a contract entered into by one of their number. In the circumstances joinder of all the trustees as parties defendant was necessary in order to reach a proper resolution of the controversy. The judgment against D'Annolfo as trustee is reversed, and the judgments against Wilda and D'Annolfo individually are affirmed. As neither Wilda nor D'Annolfo have argued their appeals from the judgments entered against them in their third-party action, those judgments are also affirmed.
[Note 1] Wilda Publishing Company.
We affirm the
judgment entered herein although we do so on a basis different from that adopted by the trial judge. 1. The plaintiffs cannot prevail on a theory of common law deceit because, despite the judge's conclusion to the contrary (which we disregard as being clearly erroneous), Mahaney was not justified in relying on Camarota's representations as to the estimated retirement benefits available to Mahaney under the insurance policy upon his attaining the age of fifty-five, those representations, in the circumstances of this case, having been "preposterous or palpably false." Yorke v. Taylor, 332 Mass. 368 , 374 (1955). Those circumstances included the following: (a) the respective figures for Mahaney's anticipated retirement benefits at ages sixty-five (cash at retirement of $256,430, or total monthly pension of $2,416) and fifty-five (cash at retirement of $221,430, or total monthly pension of $2,282) had been conveniently juxtaposed by Mahaney on page 5 of the proposed retirement plan in his possession; (b) Mahaney had thoroughly familiarized himself with those figures; (c) the ten-year span which accounted for the differences between the two sets of figures (1990 to 2000), despite the absurdly disproportionate amounts of those differences (a difference of only $35,000 in cash to be paid at retirement and one of only $134 in total monthly pension payments); and (d) Mahaney was at all material times keenly aware, as demonstrated by his testimony, that the amounts of the expected benefits were a function of time. It should therefore have been obvious to him that something was radically wrong with the figures given to him. See Restatement (Second) of Torts 541, Comment a (1977). Since the unreasonableness of Mahaney's reliance is a complete bar to the defendants' liability for deceit, we need not decide upon the correctness of the reasons given by the judge for concluding that the defendants were not so liable or of his ruling that the measure of damages in a deceit action of this kind was not governed by G. L. c. 231, Section 85J. 2. To the extent that the plaintiffs' contract claim is one to enforce the insurance policy, the claim is defeated by the plain language of the policy. See Conney v. New England Tel. & Tel. Co., 353 Mass. 158 , 165 (1967). To the extent that they seek reformation of the policy on the basis of Camarota's misrepresentations as to the estimated benefits available to Mahaney at age fifty-five, their claim is merely a restatement of their claim for damages on a tort theory of deceit and is foreclosed for the reason discussed in part 1 of this opinion. 3. So far as we can determine from a reading of the pleadings, the voluminous exhibits, and the entire six-volume transcript, the plaintiffs did not assert any rights under G. L. c. 93A until after the conclusion of the trial, the case having been tried on the footing that the plaintiffs were seeking to impose liability on traditional tort and contract theories without reference to c. 93A. It was not clear until after the entry of judgment that c. 93A even applied to purchases of insurance (see Dodd v. Commercial Union Ins. Co., 373 Mass. 72 ) or that actions brought under Section 11 of that chapter (assuming without deciding that this could have been such an action) were exempt from the requirement of Section 9 that "a written demand for relief" be made prior to the initiation of the action (see Nader v. Citron, 372 Mass. 96 , 99-101 , and cases cited). The defendants were put at an unfair disadvantage by the plaintiffs' belated attempt to inject c. 93A into the case, as they were thereby deprived of any opportunity during the pleading and trial stages to prevent or limit their supposed liability thereunder, such as by invoking the
demand-letter requirement of Section 9 or the tender-of-settlement provision of Section 11 (depending on which section might apply). See Nader v. Citron, supra. We therefore agree with the judge's apparent conclusion that the plaintiffs' claims under c. 93A were not properly before him. 4. The judge correctly ruled that G. L. c. 176D provides no remedy for private parties injured by deceptive insurance practices. See Dodd v. Commercial Union Ins. Co., 373 Mass. at 75, 77. 5. The plaintiffs' claims under the Uniform Securities Act (G. L. c. 110A, inserted by St. 1972, c. 694, Section 1) are equally unavailing, as an insurance policy is not a "security" within the meaning of the act. See G. L. c. 110A, Section 401(k). 6. We do not consider various other issues which are suggested but not argued in the plaintiffs' brief within the meaning of Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See Lolos v. Berlin, 338 Mass. 10 , 13-14 (1958).