Matthews v. Fuller

123 Mass. 446 | Mass. | 1877

Endicott, J.

The defendants sold for the plaintiff, under • certain instructions, ten bonds of the Union Pacific Railroad, and invested the proceeds in bonds of the Iowa Central Railroad. The plaintiff contends that the instructions directed the defendants to change the Union Pacific bonds for registered bonds, that the Iowa Central bonds were not registered, and that the defendants did not act in good faith. The defendants contend that the instructions did not require them to invest the proceeds in registered bonds, that the defendants did act in good faith, and that the plaintiff, after knowing all the facts, neglected for more than two years to object to the transaction and thereby accepted and ratified it.

The presiding judge stated to the jury that the instructions, contained in the plaintiff’s letters, did not limit the defendants to an investment in registered bonds, but the matter was left to their judgment; that they must use their best judgment, and make as safe an investment as they reasonably could, and that the permission given them by the plaintiff to invest in Iowa Central bonds did not relieve them from exercising their best judgment. He also instructed the jury, that the defendants were bound to act fairly, prudently and in good faith in the transaction. We see no ground of exception to these instructions.

The plaintiff does in his letters express a decided wish to have his money put into registered bonds, and says that he is anxious to do so, but after considering the subject at some length and giving no definite instructions, he concludes by saying, “ I shall feel under many obligations if you will kindly make such sale and purchases of bonds as your good sense dictates.”

It is urged as an objection to the fourth instruction to the jury, that the presiding judge stated, as matter of fact, “ that the plaintiff had testified that he became satisfied, after he heard of the investment, that the bonds were worthless and he had lost his money,” and omitted to state the ground on which the plaintiff said he came to this conclusion, respecting which he testified later in his examination. The instruction of the presiding judge is not open to this objection; for while he did not state in terms the ground on which the plaintiff came to that conclusion, the jury were also told “ it was for them to say whether it was a fair inference from his testimony, that from the fall of 1872 he was in possession of knowledge that his instructions to the defendants had not been complied with, and that the transaction was one which he had the right to repudiate.” The presiding judge did not tell the jury what was proved as matter of fact, but, after calling their attention to a statement of the plaintiff, left it for them to say, on all his testimony, whether he knew in 1872 that the instructions, he contended were given, had not been complied with. This was an important question for the jury to consider, if they found it necessary to determine whether the plaintiff, by failing to object for two years or more, had ratified the sale and purchase.

Exceptions overruled.