Durant v. Burt, 98 Mass. 161

Durant v. Burt

98 Mass. 161 | Mass. | 1867

Fostee, J.

The presiding judge submitted this ease to the jury upon one instruction which we regard as plainly correct, and which renders it unnecessary to consider any of the rulings asked for by the defendant. It was as follows:

“ That if the jury shall be satisfied that the plaintiffs purchased this stock as they allege, at the request, upon the terms requested, and for the account, of the defendant, notified him that they had so done and the terms, and the defendant assented thereto, afterwards carried the stock, at the defendant’s request, until the defendant had notice from the vendor that it must be sold, and then, at the defendant’s request, express or implied took and paid for the stock, they should render a verdict for the amount paid, with interest, less the net proceeds of a sale which was made without any unreasonable delay after the refusal of the defendant.”

Of course, if the jury found the state of facts assumed in this instruction to exist, they need inquire no further; for the defendant, having requested and sanctioned the proceedings of the plaintiffs, is now bound to reimburse them for money paid at his request and to his use. But it is urged that the evidence did not warrant a verdict for the plaintiff on this ground. It is not all reported; but vre find enough to show affirmatively that the instruction above recited was pertinent to the case, and the question properly left to the consideration of the jury. In strictness, the objection that this instruction was not appropriate to the facts should have been made distinctly at the tidal, and all the evidence should have been recited, in the bill of exceptions but we do not find it necessary to decide the case on this ground.

*167The evidence tended to show that the plaintiffs made a Dargain for the stock, by the defendant’s request, and just such an one as he authorized ; that the defendant was notified of the fact and of the terms of the purchase, and signified his assent thereto; that, before the ten days’ credit expired, the plaintiffs requested the defendant to advance money, called “ a margin,” to secure them against loss by the fall in the market value of the stock, and the defendant said “it would be all right.” This showed that he was aware that the plaintiffs had made themselves liable for him on account of the purchase, and expressly ratified that arrangement.

The duty then incumbent upon the defendant was to supply the plaintiffs with money to pay for the stock on the day when its price became payable. This he failed to do, and the seller of the stock, at the request of the plaintiffs, “ carried it,” that is, obtained a further credit for the payment, until September 29. Then the seller, the plaintiffs, and the defendant, met together, and the latter was informed by the seller that he looked to the plaintiffs for payment, and, if not paid, should sell the stock. To all this the defendant made no objection, but only said “ he could do nothing about it,” which was not a repudiation of the bargain, but a declaration of inability to fulfil it. On the same day the plaintiffs did pay for the stock, notified the defendant that they had done so, and called upon him for repayment. There is no evidence that at any time he repudiated their agency, ar objected to any of their proceedings.

The point chiefly insisted upon is that the bargain made for the stock could not be legally enforced because it was not owned by the party who agreed to deliver it. Gen. Sts. c. 105, § 6. But it nowhere appears that the defendant made this objection, or any other, to the contract. His only excuse at the time appears to have been inability to pay. The plaintiffs are not shown to have known that the vendor was not the real owner, at ’east until the power of attorney to transfer it was delivered to .hem on September 29. The fact that the stock stood in the name of a third party was by no means conclusive as to the real ownership And the plaintiffs were not bound to refuse to *168fulfil the agreement upon such an objection, unless instructed by their principal, the defendant, to do so. The case of Stebbins v. Leowolf, 3 Cush. 137, decides that a vendor seeking to enforce a contract for the sale of stock must show that he owned it when he made the bargain. But this doctrine has no application to a case like the present, in which an agent has paid money for his principal and seeks reimbursement.

We think the circumstances fully warranted the jury in finding a verdict for the plaintiffs on the ground covered by the instructions of the presiding judge.

It remains to consider the objection made to the instruction that the fact that both parties were brokers, and might be presumed to know the usages of their business, was entitled to great weight. This is claimed to be a charge upon a matter of fact forbidden by the Gen. Sts. c. 115, § 5. This provision of law was considered in Commonwealth v. Barry, 9 Allen, 276, and held to prohibit courts, in charging juries, from expressing an opinion as to the credibility of witnesses. But a judge may “ state the testimony; ” and this can hardly be done without calling the attention of the jury to the degree of weight and importance to be attached to particular facts, if they are proved or admitted. To say that certain circumstances deserve to be seriously considered, or are entitled to great weight, is not expressing an opinion as to what facts have been proved, but only instructing the jury with regard to the relative materiality and importance of different portions of the evidence. To assist and guide the deliberations of the jury by such comments is no infringement upon their province, but often a duty necessary to lead their minds to an enlightened and discriminating consideration of the case. Exceptions overruled,