133 Mass. 343 | Mass. | 1882
It does not appear from the exceptions that the sales of the Aztec Copper Company stock were not rightly admitted in evidence. The sales may have been at public auction, and they were near in point of time; and no such facts appear as enable us to say that the court erred in admitting them. Benham v. Dunbar, 103 Mass. 365. Kent v. Whitney, 9 Allen, 62. Cahen v. Platt, 69 N. Y. 348.
Whether the third request for instructions should have been given depends upon what it means. If it means that, the plaintiff being in default, the defendant had a right to sell the stock, it should of course have been given. If it means that, the plaintiff being in default, the defendant had the right to sell the stock in any manner and for any price he saw fit, without taking any pains to obtain for it what it was worth, it should not have been given.
Apparently the real contest between the parties was whether the defendant was bound to sell the stock in small lots if thereby he could get more for it, and whether the instruction of the court, that “ the defendant was bound to use due diligence and care in the sale of said stock to protect the rights of the plaintiff, that he must use the same care, prudence and diligence in the sale of it that a prudent man would in the sale of his
Under the authority given to the defendant, he had the right, on the non-performance of the promise of the plaintiff, to sell either certificate of stock, or both if the proceeds of the sale of one did not satisfy the debt, and was not bound to divide either certificate up into small lots, even if a prudent owner, having regard solely to his own interests, would have done so.
The defendant was not bound to sell the shares immediately on default, but he had a right to sell them then if he chose, and he was under no obligation to the plaintiff to postpone the exercise of this right, if the stocks were then depreciated in value. The defendant was bound to exercise reasonable care and diligence to obtain whatever the stocks were worth at the time he sold them. It is possible that, if a prudent person ever became the owner of such stocks, he might think it best to hold them, under the expectation that they would rise in value, but the defendant was not required to do this.
Under the instructions given by the court, as applied to the evidence and to the contentions of the parties, the jury may have been misled into the belief that the duty of the defendant was to exercise the same prudence and diligence which a prudent owner would exercise in determining the time when he would sell his own stocks, and whether he would -sell each certificate of stock as a whole or in parcels; and for this reason the exceptions must be sustained.
It is unnecessary to consider whether there was any evidence that would support the count in the nature of trover.
Exceptions sustained.
