Bassett v. Rogers

| Mass. | Feb 29, 1896

Field, C. J.

This case was once before this court, and is reported in 162 Mass. 47" court="Mass." date_filed="1894-06-23" href="https://app.midpage.ai/document/bassett-v-rogers-6425000?utm_source=webapp" opinion_id="6425000">162 Mass. 47. After that decision a trial was had and a verdict rendered for the plaintiff, and damages were assessed to the amount of the value of the twenty-five shares of the stock of the Union Pacific Railroad Company, and of the promissory note of C. 0. Homer. The defendants made certain requests for instruction to the jury, which the court declined to give.

It appears that at the trial the plaintiff offered to prove by an expert the value of the two shares of the stock of the Leavenworth and Topeka Railroad Company, but the defendants objected to the admission of the evidence, and it was excluded. The exceptions also recite as follows: “ The defendant Rogers, being asked on cross-examination if he regarded Leavenworth and Topeka stock as of much value, replied, £ I do not think it has much value.’ While this defendant was on the stand the plaintiff handed to him the certificate of the two shares of that stock in question, duly assigned in blank, and offered to make him a present of it, but he rejected it, and cast it upon the floor.”

The question is whether it was necessary for the plaintiff before bringing the suit to return or offer to return to the defendants the shares of Leavenworth and Topeka Railroad stock, and to pay or offer to pay to them the loan of $1,000; or to offer to pay to them a reasonable compensation for the lending to the plaintiff of $1,000, which we infer was lent to him by one or both of the defendants, and was ultimately secured by a mortgage on the Orange Street property. This property was received by the plaintiff from Blanchard, and the money was lent according to the promise of the defendants to the plaintiff shown in “ Agreement C,” which is to be considered as a modification of the agreement marked “ Exhibit 2.”

If the defendants are regarded as purchasers from the plaintiff, of course the action cannot be maintained, as the plaintiff has received all he agreed to sell for, and there is no ground on which he could rescind the transaction. But as the defendants have been found by the jury to be the agents of the plaintiff, and to have sold the plaintiff’s property to Blanchard as such agents, there is nothing to rescind. They were authorized to sell the property at a certain price, or for certain property in exchange, and they have in fact sold it for a higher price, or for more valuable property in exchange. If they had sold it for less than they were authorized to sell it for, perhaps the plaintiff could not complain if they made up the difference out of their own property ; but having sold it for more, the plaintiff, if he so elects, is entitled to the excess, and as the property given in exchange was not money, but specific property, he is entitled to what they got in exchange or its value. It may be assumed that, on recovering this, the two shares of the Leavenworth and Topeka Railroad stock become the property of the defendants ; but, if so, a tender of them at the trial was sufficient, and probably no tender at all was necessary, as the shares, on the finding of the jury, were not received under any contract which the plaintiff has attempted to rescind. On the finding of the jury, the agreements of the plaintiff only fixed a minimum price at which the defendants might sell, and these agreements do not prevent the plaintiff from recovering all the defendants sold the property for if they sold it for more than the minimum price.

The plaintiff never agreed to pay the defendants any compensation except interest for the lending to him of a thousand dollars for one year at six per cent. Under their agreement with him and on the facts in this case, no agreement to pay compensation in addition to the payment of the loan with interest can be implied. We infer that the thousand dollars with interest had been paid to the defendants before the trial of the case the second time, as it was payable in one year from the time when the loan was made. There is no contention concerning this, and for the reasons hereinbefore given it was not necessary to repay this money before bringing the suit.

Exceptions overruled.