235 Mass. 133 | Mass. | 1920
The plaintiff paid the defendants, who are stockbrokers, $3,400 on account of the purchase of certáin stock, and seeks to recover it in this action of contract. In the Superior Court the case was heard upon the auditor’s report; and judg
It is conceded that the plaintiff cannot recover under the gaming statute, R. L. c. 99, § 4. That an actual purchase was intended, is settled by the findings of the auditor: “Both the plaintiff and the defendants contemplated actual delivery of the stock when issued. At the time the order was given, i. e., on December 1, 1916, the plaintiff intended to pay for the stock in full when it should be issued.”
It is now urged that there was a breach of contract by the defendants, for which the plaintiff can recover at common law. In determining what .was the contract between the parties, as indicated by the facts found, the finding for the defendants imports a finding in their favor of all the subsidiary facts essential to that conclusion. Adams v. Dick, 226 Mass. 46, 52. The plaintiff in November, 1916, desired to buy one hundred shares of the Chicago, Rock Island and Pacific Railroad Company Preferred “B” stock. The stock had not been issued; but the proposed plan for the reorganization of the road contemplated its issue in the following July. Any purchase of this stock would be “when, as and if” issued, and the plaintiff so understood. He did not personally see the defendants, but requested one Coolidge, an officer of a trust company of which the plaintiff was a customer, to transmit the order to the defendants; and he did so. The stock was not dealt in upon the Boston Stock Exchange; and the defendants had no office in New York. The auditor found, “Mr. Coolidge knew that the said stock could be bought only in New York; that the defendants’ usual course of business was, upon receipt of an order to buy such a stock, to transmit the order to the defendants’ correspondents in New York for execution there. Mr. Coolidge also knew that the defendants would not themselves receive a certificate for the stock until they had paid for it, and that they would not carry it themselves, but would ask their New York correspondents to carry the stock for them.” The facts warrant a finding that Coolidge was the plaintiff’s agent, and that consequently his knowledge in connection with the business concerned was the plaintiff’s knowledge. Cobb v. Fogg, 166 Mass. 466.
As already stated, when the order was given, on December 1, 1916, “the plaintiff intended to pay for the stock in full when it should be issued,” July 14, 1917. When the defendants were informed by their New York correspondents that the latter had bought the one hundred shares of stock, they notified the plaintiff. For the first time he called upon the defendants; but instead of paying in cash, as agreed, or giving security, as requested, he asked and was given time to raise the money. When he paid $3,000 on August 31, 1917, the market price of the stock had fallen. He paid $200 September 14, and $200 October 11; but never paid nor offered to pay the full price, and never asked that the stock be delivered to him. As the market price continued to fall, and the plaintiff failed to make further payment or supply security as requested, the defendants sold the stock and sent him a statement showing that they owed him $73.75, together with a check for that
It is unnecessary to consider the further question argued, whether the defendants or their correspondents actually had at all times, within their possession or control enough shares of stock to meet the demands of all their customers. An inquiry as to “ actual purchase or sale,” and as to whether the stock was within the “immediate control” of the defendants is not involved. Cases like Fiske v. Doucette, 206 Mass. 275, Greene v. Corey, 210 Mass. 536, and Adams v. Dick, 226 Mass. 46, relied on by the plaintiff, are not applicable to the contract made by these parties. It was not a contract to carry stock on margin, but one to take the stock when issued, and to pay in full. As already pointed out, they did not agree to purchase and carry the stock themselves. Under the contract, as the court could find, the defendants were only required to deal with the plaintiff’s order according to the usual course of their business in such dealings, as above set forth. The plaintiff has failed to show a breach of that contract. In accordance with the report, the entry must be
Judgment for the defendants.