206 Mass. 71 | Mass. | 1910
The defendant made a non-negotiable promissory note for $1,000, payable to the plaintiff’s assignor ten months after date, which, after the promise, contained the following language: “ I having deposited with this obligation as collatéral security ten shares of Harvard Real Estate Trust Stock, the same now standing in his name but to be transferred to me at any time upon request. A payment of $100 to be made upon this obligation on the ninth day of each and every month subsequent to the date hereof, and the whole of said collateral is to be held as security until the full payment of "this obligation, as above, with authority to sell the same without notice, either at public or private sale or otherwise, at the option of the holder or holders hereof on the non-performance of this promise, he" or they giving me credit for any balance of the net proceeds of such sale remaining, after paying all sums due from me to the said holder or holders, or to his or their order. And it is further agreed that the holder or holders hereof may purchase at any public sale.” This was duly assigned to the plain
The weight of the evidence tended to show that the note was given for the price of the shares which previously had belonged to the plaintiff’s assignor, although there was testimony of a different kind. If we assume this to be a fact, as the defendant contends, the writing shows that the ownership of the property had passed to the defendant, and that, without changing the form of the certificate, the shares had been pledged by the defendant to the plaintiff’s assignor, so that the defendant was the owner of the equitable interest. There was a good consideration for the note in the agreement of the parties, whereby the equitable ownership of the shares passed permanently to the defendant, subject only to the pledge for security which made it proper that the legal title shown by the certificate should be in the payee. Assuming that the defendant is right in his con- • tention that, for some reason, it was arranged that the defendant might at any time have the shares transferred to him, he giving an immediate transfer back for collateral security, the failure to make such a transfer on request did not leave the note without consideration. The ownership of the property remained the same as the writing shows it to be. The failure would be a breach of contract for which the defendant might have a remedy in damages. It does not appear whether the damages would be more
This view of the case makes most of the other questions unimportant. As they are not likely to arise again in the same form, we do not think it necessary to discuss them.
The failure of the plaintiff’s assignor to transfer the shares upon request, if there was such failure, could have no greater effect upon his right to recover upon the second note, given in part payment of the first, than it had upon his right to recover on the first.
Exceptions sustained.