223 Mass. 80 | Mass. | 1916
This is an action by a trustee in bankruptcy of Fisk and Robinson, stockbrokers, to recover the difference between the cost and the sale price of certain stocks bought for the defendant. This was not intended as a margin, but as a cash trans
There was undisputed evidence that reasonably soon after the appointment of the receiver the defendant went to the Boston office of the brokers and tendered the amount due and demanded his stock, which was refused by the person in charge, and a letter was written by the defendant’s attorney to the receiver, demanding the stocks and offering to pay for them on delivery, which was refused. These circumstances were not the equivalent of demand and tender to the bankrupt or to the plaintiff. The defendant took no steps to protect his rights in the bankruptcy court. In the following November, a demand was made by the plaintiff upon the defendant for the payment of the amount due, with a proffer of the certificates of stock on payment. The defendant refusing to pay, the stocks were sold later by the plaintiff on the market at a loss from their purchase price, and this action of contract is to recover that difference. The trial judge
This conclusion appears to be supported by In re Swift, 50 C. C. A. 264, where at page 267 it was said by Judge Putnam: "We accept the law as well settled, alike by local usage in Massachusetts, where the dealings took place, and by the implied necessities of public transactions in stocks, as well as by general acquiescence and sound sense, that the ordinary relations between stockbrokers and their customers are executory for the sale and purchase of stock. We have, therefore, to deal with an agreement by which the bankrupts bound themselves to deliver certain stocks to Dee on payment of the balance due from him to them, and by which also the bankrupts were entitled, on reasonable notice, to tender the stocks to their customer and claim like "payment. But neither party fulfilled the ordinary conditions applicable to such relations. Neither made a demand or tender. Consequently, according to the ordinary rules of law, no cause of action arose in favor of either party against the other.”
If it be assumed that the intervention of bankruptcy would have enabled the trustee to elect to affirm the contract, the plaintiff is in no better posture. It was in substance found as a fact, so far as it is a fact, that the plaintiff as trustee did not elect within a reasonable time to affirm the contract, and that there were no special circumstances which justified so long a delay. It is plain that as matter of law the delay from his appointment in March until November, or even from the time when he took possession of the stocks in July, until November, was unreasonable delay in exercising whatever option the trustee may have had.
The case at bar is quite different from Chase v. Boston, 193 Mass. 522, relied upon by the plaintiff. In that case, there was a
The refusals to rule as requested by the plaintiff were all warranted by In re Swift, 50 C. C. A. 264, upon which the .trial judge relied, which is an amplification of Wood v. Hayes, 15 Gray, 375.
Exceptions overruled.
Raymond, J.