247 Mass. 112 | Mass. | 1923
The auditors, whose findings of fact the parties stipulated should be final, report that on May 12, 1913, the plaintiff bought of the Martin Manufacturing Company, of which the defendant was president, one hundred shares of preferred and seventy-seven shares of its common stock. The plaintiff contended, and testified, that as part of the consideration the defendant, through whom the purchase was made, told him he would receive a dividend July 1 on all the stock of $8.00 a share, and that he then said to the defendant he would buy the stock on that understanding, and the defendant replied “ he would agree to that for as long as the plaintiff owned the stock.” But on conflicting paroi evidence the auditors report that the alleged contract had not been proved. The plaintiff however introduced the record of a judgment in his favor recovered against the defendant in an action of contract in June, 1916, in which the declaration covered antecedent dividends on the common stock due June 20, 1913, and December 31,1913. A transcript of the record, although referred to, is not included in the report, but was put in evidence before the trial court, and is fully described in the judge’s findings and rulings which form part of the plaintiff’s
The record of the original case having been introduced, the plaintiff, on whom the burden of proof rested, was required to show that the matters tried and settled in the first case were the same as the issues in the case at bar before it could be ruled that the judgment was conclusive. Foye v. Patch, 132 Mass. 105. Corbett v. Craven, 196 Mass. 319, 322. Cinamon v. St. Louis Rubber Co. 229 Mass. 33, 37.
The first of the specifications filed in the case at bar on the defendant’s motion alleged, that on or about July 3, 1913, a dividend on one hundred shares of “ the second preferred stock ” of the company was due him, but, having received only $42.22, the defendant owed on these shares $357.78, with the further sum of $308, the equivalent of $4 a share upon seventy-seven shares of the common stock. The judge after a full recital of the proceedings finds, that in the first action the plaintiff alleged two breaches of the contract, namely, the refusal of the defendant to repurchase stock which it was alleged he had agreed to do under a contract not declared on in the present case, and his failure to pay dividends on the common stock. The judge found that, “ It does not appear from the record for which of these breaches the jury assessed damages, or whether damages were assessed for both, or whether more than one of these breaches was established. It is entirely consistent with the record that the jury may have found that there was no promise to pay dividends either on the common or on the preferred, but that there was a breach on the defendant’s part in failing to repurchase the stock, and that the resulting loss is expressed by the verdict. . . . If it be inferred from the amount of the verdict, that it was for unpaid dividends, it must have been for unpaid dividends on the common stock, because there was no allegation in the original action that there was any failure to pay dividends
The second specification sets forth that there was due the plaintiff on or about January 3, 1916, $308, the equivalent of the dividends on seventy-seven shares of the common stock at $4 a share. It is found that the declaration in the first action alleged no more than that the defendant agreed that he would cause the corporation to declare and pay dividends on the common stock at the annual rate of eight per cent beginning June 30, 1913. If it be assumed that the judgment established the fact that such an agreement was made, then the agreement would be satisfied if a dividend at that rate were declared at any time in 1916 but not later than June 30 in that year. “ It was, however, alleged in the last paragraph of the declaration in the original case that on June 30, 1914, the defendant caused but one dividend of four per cent on the common stock to be paid and that a further dividend of $4 per share should have been paid June 30, 1913, and a further dividend of like amount on December 31, 1913.” If this is to be construed as amounting to an allegation that semiannual dividends were to be paid at the rate of four per cent on June 30 and December 31, the judge was warranted in finding that no dividends, whether anntial or semiannual, would fall due for the year 1916 before June 20,1916. And the plaintiff, as the auditors state, having sold his stock on March 23, 1916, the defendant’s promise under the second specification has expired by limitation. We perceive no error of law in the rulings or refusals to rule and the exceptions must be overruled. Stone v. St. Louis Stamping Co. 155 Mass. 267, 271. Cote v. New England Navigation Co. 213 Mass. 177, 182.
So ordered.