214 Mass. 180 | Mass. | 1913
There might be in any event some difficulty in sustaining the plaintiff’s exceptions to the admission of the testimony put in by the defendant to show his payments to the firm of Charles Head and Company and to the Merchants National Bank. It is not necessary however to consider the point. It was material to show what these amounts were because the securities for which the plaintiff seeks to recover were not themselves delivered by Mrs. Colburn to the defendant, but came to him partly from the bank and partly from that firm, by each of which some of the securities were held as pledges for amounts due to them respectively; and the defendant was to pay the amounts due to them and made these payments accordingly. The amounts so paid by the defendant were agreed upon by the parties later in the trial. It follows that the plaintiff was not aggrieved by the admission of this testimony. And at the close of the evidence the parties agreed that "the difference between the market value of the securities deposited by Mrs. Colburn with the plaintiff [meaning of course the defendant] at the date of the demand and the total of the several sums advanced by the defendant to Charles Head and Company and to the Merchants National Bank on the plaintiff’s account when taking over the securities (with interest on such total to the date of the demand) was $29,344.” The jury were instructed that this was the amount which the plaintiff was entitled to recover if he made out his case.
The testimony of George was not incompetent when admitted. The whole account between Mrs. Colburn and the defendant was material to show what had been done with reference thereto by the parties, and what money had been paid or received by each of them. All of these matters might have a bearing upon the issue whether any and which of the purchases and sales made by the defendant for her were actual transactions or were merely wagering contracts within the provisions of R. L. c. 99, § 4, and also upon the issue whether the defendant had reasonable cause to believe
The judge had the right in the exercise of his discretion to admit the tabulation of the defendant’s claims “solely as a chalk or memorandum of what the defendant claimed and not as evidence.”
The testimony as to the colloquy between counsel before the auditor was competent to meet the contention, apparently made by the plaintiff in the cross-examination of Smith and by the introduction of the notice to the defendant’s attorneys and of the defendant’s answers to interrogatories, that the defendant had endeavored to withhold his books from examination.
We do not care to consider in detail the requests for instructions which were refused, or those which were given to the jury, except the rule of damages which was adopted and the instruction given at the request of the defendant that “the burden of proof is on the plaintiff to establish that both Mrs. Colburn and Kimball affirmatively intended that there should not be actual purchases and sales by the defendant.” All the other rulings were at least sufficiently favorable to the plaintiff.
If we follow the language of the statute, this last instruction clearly required too much of the plaintiff. Mrs. Colburn could have recovered, and the plaintiff as her representative could recover, if it was proved that she at the time intended that there should be no actual purchases or sales, and that the defendant at the time had reasonable cause to believe that she so intended, unless the defendant had made actual purchases and sales or valid contracts therefor, in accordance with her orders. Rice v. Winslow, 180 Mass. 500. Thompson v. Brady, 182 Mass. 321. Post
The defendant contends however that the ruling given is sustained by the case of Davy v. Bangs, 174 Mass. 238. The ruling there made was that a plaintiff who had acted in such dealings through an agent could recover if otherwise entitled to do so, upon proof that neither she nor her agent “intended to perform the contracts by the actual receipt and delivery of the securities and commodities and the payment of the price.” This ruling was sustained against the defendant’s exception. Whether it was sufficiently favorable to the plaintiff and could have been sustained against an exception by him, was not open and could not have been decided in that case. It affords no authority for the ruling here in question. We cannot tell whether the verdict for the defendant was rendered upon the ground that the defendant had made actual purchases and sales upon all the orders of Mrs. Colburn, or upon the ground that the plaintiff had failed to prove the affirmative intention of both Mrs. Col-burn and Kimball that there should be no actual purchases or sales, or perhaps upon the ground that the defendant did not have reasonable cause to believe in the existence of such an intention. Accordingly there must be a new trial.
Exceptions sustained.