312 Mass. 570 | Mass. | 1942
This is an action of contract in which the plaintiff seeks, in the first count of her declaration, to recover the balance due on a written contract to pay the plaintiff $10,000, and, in the second count, the balance due on the purchase price of shares of stock sold to the defendant. The trial judge found for the plaintiff on each count. The defendant appealed from an order of the Appellate Division dismissing the report.
The judge found that the defendant, with others, became interested, in 1933, in a corporation which had acquired the right to use a name that has become well known in the liquor trade, and that he and one Green were endeavoring to induce a New York concern to finance the corporation to the extent of $100,000. The defendant and one Cripps, the treasurer of the corporation, secured a loan of $2,000 from the plaintiff on November 27, 1933. They gave her a contract of repayment, which both executed under seal and acknowledged before a notary public, and which recited that for $2,000 and “special services rendered” they guaranteed to pay the plaintiff $10,000 on February 1, 1934. These special services, according to the plaintiff, were in connection with the New York financing, and also for having previously made a loan of $2,000 to Cripps. This last loan was subsequently paid. The judge found that three payments were made on account. He refused to find, as testified by the defendant, that the plaintiff waived any further payments after the first two. He found that the agreement of November 27, 1933, was executed by the defendant and Cripps for valid consideration, and that the plaintiff was entitled to recover on the first count $4,800, with interest.
In reference to the second count, the judge found that stock in the corporation above mentioned was sold to various
The defendant has attacked the credibility of the plain
With reference to the first count, the defendant requested the judge to make the following rulings: first, that upon all the evidence the plaintiff was not entitled to recover because (a) she has been paid in full, (b) the writing referred to in this count was an attempt to make a usurious agreement and is illegal; second, that the plaintiff did not and could not perform the special services mentioned in this writing as the condition of such services was illegal; third, that the said writing was given for an illegal consideration; fourth, that the plaintiff has been paid in full; fifth, that the writing is illegal under the laws of the Commonwealth; and, sixth, that the plaintiff has been overpaid. The defendant contended during the trial that the special services mentioned in the agreement upon which the first count was based were rendered in the sales of stock of the liquor corporation and that, as said shares were not qualified for sale in this Commonwealth, the alleged services were performed in violation of G. L. (Ter. Ed.) c. 110A. There was not only evidence that these services were of an entirely different nature, but the judge found that the plaintiff did not sell any stock in violation of said c. 110A, “although there was evidence that she and her husband endeavored to induce their acquaintances to buy stock.”
The defendant made three requests for rulings in reference to the second count. The seventh request was that the plaintiff was not the owner of any shares of the liquor corporation and had no legal right to sell any shares under the “sale of securities act.” The eighth request was, in substance, that as the plaintiff was not a broker registered under the “sale of securities act” she had no authority to sell or pledge the shares of the corporation. The ninth request called for a ruling that any sale, pledge or hypothecation of the shares of said corporation was illegal and that the plaintiff was not entitled to recover. The judge, as we have already pointed out, found that the plaintiff made
The first additional request of the defendant asked for a ruling that there was a variance between the proof and the allegation contained in the second count. The plaintiff was suing to recover the balance due on the sale of shares of stock to the defendant. She testified that she delivered the shares to the defendant on his statement that he would pay her $7,124.11 and that he paid her only $350. It is clear that there was no variance even though there was other evidence that tended toward a different conclusion. The second additional request was that the plaintiff, claiming under an oral assignment from her husband, could not recover in her name the balance due. The plaintiff was not suing as assignee for damages for the breach of any agreement which the defendant made with her husband. As will presently appear, she could be found to be the vendor of the stock in her own right and was suing to recover the balance of the purchase price.
The fourteenth request, which applies to both counts, asked for a ruling that the evidence was insufficient as matter of law to warrant a finding for the plaintiff. Nothing further need be said in reference to the first count, but a further word is necessary concerning the second count. The judge found for the plaintiff either on the ground of novation or a sale. Whether there was a novation was a question of fact. In order to have the old agreement between the defendant and Codman superseded by the new agreement between the plaintiff and the defendant it was necessary that all three parties to these agreements should assent. The plaintiff and the defendant made the second agreement with knowledge of the old agreement. The defendant was credited with the amount he had paid Cod-man, and thereafter dealt with the plaintiff as owner of the
The finding that the plaintiff made a "straight sale” of the stock to the defendant was not without support in the evidence. The defendant is not shown to have had any knowledge that the stock had been pledged to the plaintiff by her husband, and the title to the shares, the certificate
A careful reading of the record discloses nothing that prevented the judge from believing the plaintiff’s testimony or that as matter of law required a finding on either count for the defendant. The denial of the fourteenth request was proper.
Order dismissing report affirmed.