Bullard v. Smith

139 Mass. 492 | Mass. | 1885

C. Allen, J.

The defendant contends that, if the evidence shows any contract, it is not binding, because it was a contract, not in writing, for the sale of goods, wares, and merchandise exceeding fifty dollars in value, within the Gen. Sts. a. 105, § 5. The jury, however, under the instructions given to them, must have found that the contract was of a different character; and that it was, in substance, a contract between Foster and the defendant to share equally in the profits and losses which might result from the sale of the stock. Such finding was warranted by the evidence. The plaintiff’s testimony was that the defendant stated to him that he had a half interest in the stock, and that he recognized a liability for his share of the loss. It is not necessary to consider how far this was modified by the defendant’s own statement, at the trial, of the contract, or of his interview with the plaintiff, or by his letter to the plaintiff. The jury may have accepted the plaintiff’s testimony as accurate; and, on a bill of exceptions, we cannot revise their finding upon this subject. Assuming the contract to have been according to the plaintiff’s testimony of the defendant’s statement to him, it was not a sale of goods within the statute of frauds, nor within the statutory provision against stockjobbing. Gen. Sts. c. 105, § 6. Colt v. Clapp, 127 Mass. 476.

Nor was it shown to be a wager contract. It was a contract by which the defendant was to share in a speculation which had been entered into by Foster, the plaintiff’s intestate. So far as appears, Foster supposed that the shares had been bought and were held for him by the brokers to whom he gave the order. The fact that he put up no margin which was specifically applicable to this purchase was immaterial. By reason of other transactions, his account with the brokers was good; and, independently of other transactions, his credit may have been good, so that the brokers were willing to trust him. There is nothing to show that Foster was ever aware that the brokers had procured other brokers to purchase and carry the stock. No point on this subject is presented by the bill of exceptions. Nor was Foster or the plaintiff, if he considered himself morally bound to fulfil his agreement with the brokers, obliged to refuse to fulfil it upon such an objection, unless instructed by the defendant to do so. Durant v. Burt, 98 Mass. 161, 167. It has often been held, that no man is bound to set up the statute of frauds as a defence, for the benefit, or even at the requirement, of another, in a personal action against him upon a claim, the obligation of which he recognizes as founded in good faith and right. Cahill v. Bigelow, 18 Pick. 369. Ames v. Jackson, 115 Mass. 508. Even if the contract could not in law have been enforced against the plaintiff, which we do not decide, he had a right to carry it out according to its terms, and the defendant would be bound by his act in doing so, no notification to the contrary having been given.

The fact that Foster had already made the purchase on his own account, when the defendant’s contract with him was made, does not affect the principle. To constitute a partnership in profits, it is not essential that there should be a community of interest in the capital or stock producing the profits. 1 Bindley on Part. (4th ed.) 20, 21. Story on Part. § 27. Such partnership might exist, though Foster furnished all the capital, and though the shares stood in his sole name.

The assumption by the defendant in his brief, that the stock was never owned nor contemplated to be owned by Foster, or to be under his control or disposition, and that the contract was understood by the parties as merely nominal, is not supported by the facts in proof. Exceptions overruled.