Home HENRY I. MORRISON, administrator, vs. PETER P. MINUTILLI & another.

338 Mass. 784

October 31, 1958

Decree affirmed. The administrator of the estate of one Gerbasi asked the Probate Court to determine the ownership of twenty shares of the capital stock of Lucky Star Cafe of Revere, Inc., standing in the names of the respondents Minutilli and Carmello. The evidence is not reported. The probate judge reported the following material facts. Gerbasi prior to 1942 carried on as sole proprietor a tavern business. On April 21, 1942, the business was incorporated. Thirty shares of stock were issued to Gerbasi. Stock certificates, in the name of Carmello for five shares and in the name of Minutilli for fifteen shares, were signed by Gerbasi, as president and treasurer. Neither Carmello nor Minutilli paid anything for these shares, or was aware that the certificates existed until after Gerbasi had died. The only consideration for any shares shown to have been paid to the corporation was Gerbasi's transfer to it of the assets of the tavern business to pay for his own shares. The certificates were kept by Gerbasi's attorney until 1955 when they, in a single envelope, were handed by Gerbasi, then in poor health, to Carmello to put in a safe deposit box, rented by Gerbasi, to which Gerbasi and Carmello had access. No other visit to this box was made by Carmello and none of Carmello's property was ever kept there. The management of the business and its financial control remained in Gerbasi after the incorporation, although Minutilli and Carmello were corporate directors and continued to be paid weekly wages as employees of the tavern. The facts reported by the judge were sufficient to overcome any inferences either that the respondents had some interest in the certificates by reason of G. L. c. 155, Section 44, or of any failure of the corporation to comply with the provisions of G. L. c. 156, relating to the original issue of, and payment for, corporate stock. The facts found would have justified the judge in concluding that neither respondent ever had any beneficial interest in the business or in the stock certificates, if, indeed, the certificates were ever issued at all. The facts reported justify, and are consistent with, the final decree that Minutilli and Carmello were not the owners, by gift, purchase, or otherwise, of the shares standing in their respective names and that they must deliver the certificates to the administrator. The probate judge was not bound to modify his report of material facts at Minutilli's request. Fields v. Paraskis, 318 Mass. 726 , 727-728. Adams v. Adams, 331 Mass. 354 , 358.


338 Mass. 784

November 4, 1958

Order sustaining demurrer affirmed.

Page 785

It is alleged in the petition for a writ of certiorari that the petitioner filed a subbid for the waterproofing work on a building for which sealed bids had been publicly invited on August 6, 1957, by the division of building construction (hereinafter called the division) of which the respondent is director; that three bids were received; that the respondent rejected two of these as from subbidders who had not shown their competency to do the work; and that the respondent also rejected the petitioner's bid. General Laws c. 149, Section 44D, as appearing in St. 1956, c. 679, Section 1, provides that "the awarding authority shall reserve the right to reject any sub-bid . . . if it determines that such sub-bid does not represent the sub-bid of a person competent to perform the work . . . or that only one such sub-bid was received and that the price is not reasonable for acceptance without competition" (emphasis supplied). The word "such" obviously refers to a "sub-bid of a person competent to perform the work." In James Constr. Co. Inc. v. Commissioner of Pub. Health, 336 Mass. 143 , 145, a similar situation arose under G. L. c. 149, Section 44C (E), as appearing in St. 1954, c. 645, Section 3. The relevant language of the former Section 44C (E) is comparable to that now found in Section 44D, and the James Constr. Co. case appears to have treated the rejection of all subbids as proper in the absence of allegations, not here present, that the awarding authority failed to follow the procedure prescribed by the Legislature. Under Section 44D, it was open to the division, having before it only one subbid from a person competent to perform the work, to reject it if it found that the price was not reasonable for acceptance without competition. Grande & Son, Inc. v. School Housing Comm. of No. Reading, 334 Mass. 252 , 258, does not require a different result. In that case, this court had no occasion to consider the situation of fact presented in this case and in the James Constr. Co. case.