Downer v. Whittier

144 Mass. 448 | Mass. | 1887

Morton, G. J.

The note in suit became due in December, 1877. After its maturity, the plaintiff frequently wrote to the defendant, stating that she must sell the stock unless he paid something on the note; finally, about May 24, 1879, she wrote him that she should sell the stock on May 31,1879; he made no reply to this letter, and, on the day she had named, she sold it to her mother. The old certificate was sent to the defendant at Boston; he was the treasurer of the corporation, and* in his capacity as treasurer, he made the transfer on the books, and issued a new certificate to the plaintiff’s mother. About two years afterwards, the corporation sold out to another company of which the defendant was treasurer, and he, as treasurer, issued new stock to the plaintiff's mother in exchange for the old stock. The defendant did not, at the time of these transactions, make any objection to the sale, or to the notice given to him, nor at any time before this suit was brought. If he objected to the sale, good faith and fair dealing required that he should have notified the plaintiff of his objection. His failure to do so, his failure to answer her letter notifying him of her intention to sell, and the fact that he allowed six years or more to pass without making any objection to the sale, point strongly to the conclusion that he had no objections to the plaintiff’s proceedings, and would justify a jury or the court in finding that he intended to waive, and did waive, any right he may have had to a more formal or longer notice.

Very much the same considerations apply to the sale of the endowment policy. She' was pressing the defendant for the payment ot his debt in whole or in part, and in March, 1879, he wrote her that, by borrowing on the policy as collateral security and by paying something out of his own funds, he could pay her $1350 for the policy. To this letter she replied that she had been offered $1453 for the policy, and, unless he could pay her that amount, she should sell it. He made no reply to this, and, in October, 1879, she sold it for $1494.56, which was its full value. She notified him of the sale, and he never made any objection or complaint until after this suit was brought. His conduct leads to the inference that he assented to the sale, and justified the court in finding that he had waived the right to further notice, if he had any such right.

The only other question is whether the court erred in assessing the damages. The court adopted' the rule laid down in Dean v. Williams, 17 Mass. 417, and approved in Ferry v. Ferry, 2 Cush. 92,^* and which has since been uniformly acted upon in our courts. The plaintiff is, therefore, entitled to judgment for the stim found by the court. Exceptions overruled.

* See also Blanchard v. Cooke, ante, 207, 222.