| Mass. | Mar 11, 1896
The fourth count is on an account annexed, for the amount paid by the plaintiff to the defendant in excess of the agreed- price. There was some evidence tending to show that the agreement of sale was that the plaintiff should have the shares at cost. At the outset of the negotiations, according to his testimony, he said to the defendant, “If I go into this thing at all, I will only do so on the understanding that I pay no premium on the stock, and come in on the ground floor ” , and the defendant replied, “ Certainly, you shall have the stock at what it cost me.” There was some evidence tending to show that the subsequent negotiations proceeded on this basis, and that the defendant afterwards explained to the plaintiff how the cost was arrived at, with reference to fixing the sum which the plaintiff was to pay. According to the plaintiff’s testimony, the defendant said, “ The way of it was this: we had the business valued by an expert; he called it worth twenty-five thou- . sand dollars, and I bought half, and then we turned it into a stock company, and made the capital fifty thousand dollars.” And still later, when the plaintiff was seeking to rescind the contract and get back the whole of his money, he put his claim in part on the ground of such a contract. He said to the defendant, “You sold me the stock at a greater price than you agreed to ” ; and the defendant did not in terms deny the con
The distinction may be rather nice between an agreement to sell at cost, when the cost is represented to be a certain sum, and an agreement to sell at a certain sum, which sum is represented to have been the cost. This distinction however exists, and it would be more marked if at the time of entering into the agreement of sale the vendor should not fix or know the exact cost, and the parties should leave it to be ascertained afterwards. In the present case, the words used admit of the construction that the plaintiff was to have the stock at its cost to the defendant. Willard v. Randall, 65 Maine, 81. Barnard v. Colwell, 89 Mich. 215.
It is contended that the construction of the words used is for the court; and so it is, where an oral contract is distinct in its terms. But where a contract is to be gathered from talk between the parties, and especially from talk on more than one occasion, the question what the contract was, if controverted, must usually be tried by the jury as a question of ‘fact. Globe Works v. Wright, 106 Mass. 207" court="Mass." date_filed="1870-11-15" href="https://app.midpage.ai/document/globe-works-v-wright-6416327?utm_source=webapp" opinion_id="6416327">106 Mass. 207, 216. Camerlin v. Palmer Co. 10 Allen, 539. Perkins v. Hinsdale, 97 Mass. 157" court="Mass." date_filed="1867-09-15" href="https://app.midpage.ai/document/perkins-v-hinsdale-6415013?utm_source=webapp" opinion_id="6415013">97 Mass. 157. Thruston v. Thornton, 1 Cush. 89. In this case it could hardly be said that the terms of the contract of sale were clear and distinct, so as to be uncontroverted. The plaintiff was entitled to go to the jury on the fourth count.
The first three counts all rest on the ground of an attempted rescission, and seek to recover back the full sum paid by the plaintiff to the defendant for the shares. • But the plaintiff could not rescind the contract of purchase, because the defendant could not be restored to his former position. He resigned his office as treasurer of the company, and the plaintiff was chosen in his place, and the plaintiff did not tender his resignation or offer to •do anything towards restoring the defendant to that position. He held the office several weeks before the counsel made the arrangement as to his continuing to serve as treasurer. The facts show no effectual rescission. Marston v. Singapore Rattan Co. 163 Mass. 296" court="Mass." date_filed="1895-03-04" href="https://app.midpage.ai/document/marston-v-singapore-rattan-co-6425225?utm_source=webapp" opinion_id="6425225">163 Mass. 296. Snow v. Alley, 144 Mass. 546" court="Mass." date_filed="1887-05-21" href="https://app.midpage.ai/document/snow-v-alley-6422482?utm_source=webapp" opinion_id="6422482">144 Mass. 546.
The first two counts are treated by both parties as counts in tort, based on fraud. They seek, however, to recover back the
Hxceptions sustained.