178 Mass. 40 | Mass. | 1901
In these cases there had been no previous trial, or election to sue on the covenant, and it was understood that the plaintiffs might recover the withdrawal or book value of their stock irrespective of the pleadings, if they were entitled to that upon the facts. In other respects the cases are like Daley v. People’s Building, Loan & Savings Association, ante, and are governed by it.
If we assume that the jury would have been warranted in finding that when the plaintiffs sought to withdraw the defendant made false pretences and set up a forfeiture knowing that it had no right to do so, still in our opinion there was no right to rescind and the only remedy was on the contract under which the plaintiffs had been members of the company for five years.
Judgment for the defendant.