103 Mass. 313 | Mass. | 1869
The plaintiffs acted as agents of the defendant in contracting for the purchase of the stocks which are the
The plaintiffs contracted with Spencer on November 27,1867, for the purchase of 100 shares in the Hancock Mining Company, to be delivered in two months, at buyer’s option. Spencer then had 3550 shares. He had received 300 of them from one Sheafe as collateral security for a loan. But the loan was unpaid, and it was agreed that Spencer should have the absolute right to dispose of the shares, and, when the loan should be paid, he was to return the same or other shares. His contract to sell shares thus held by him would not be a violation of the statute, because he had a right to sell them. But he was under a contract to deliver 300 shares to one Farley and 3150 shares to other persons, on time, at buyer’s option, so that he had only 100 shares remaining which he could legally contract to sell to the plaintiff. But this was sufficient to make the first contract legal. On the 29th of November he purchased 100 shares more, and on the 30th he contracted to sell 100 shares to the plaintiffs. This contract appears to be legal also, as he owned the shares. But on December 2 he contracted to sell the plaintiffs 100 shares more; and at that time he had no shares that he had not contracted to sell, and did not have them till December 10, when he became possessed of a large number.
The defendant contends that the case of Stebbins v. Leowolf, 3 Cush. 137, is a decisive authority against the plaintiffs’ claim in respect to these shares. That case related to a statute of the state of New York ; but our own statute is substantially like it, and must receive the same construction. In that case, the plaintiff had contracted to purchase the stocks, as agent of the defendant; but he was conversant of all the facts, and of the