245 Mass. 35 | Mass. | 1923
This is an action of contract to recover $250 paid by Fred A. Sweetland to the defendant for two hundred and fifty shares of the Friendswood Texas Oil Company, the claim and account having been duly assigned by Sweet-land to the plaintiff. It is the contention of the plaintiff that the defendant agreed to sell and deliver the stock for the price paid, that she has failed to do so, and that he is entitled to recover the consideration so paid.
There was evidence that the defendant had known one Tutin, a stock salesman of the company, for many years and had previously purchased through him five thousand shares of stock in the company, which she still owns; that she also loaned the company $1,000 upon its note; that afterwards she agreed with it to take one thousand shares more in payment of her note and surrendered the note to Tutin; subsequently she orally “ authorized the company through Tutin to transfer said two hundred and fifty shares out of said one thousand shares to Sweetland,” the plaintiff’s assignor. Sweetland’s agreement to purchase the stock was made through the intervention of the plaintiff, who saw Tutin in July, 1921, and gave him his own check for
On November 2, 1921, Turin mailed to Sweetland a cerficate for two hundred and fifty shares of stock in the company. The certificate was not on the regular printed form of the company; it was typewritten on a common blank form and was signed on November 2, 1921, but under date of July 30, 1921, by persons who in July, but not on November 2, were holders of the offices of president and treasurer of the corporation. This certificate was ultimately delivered to the plaintiff and was produced by him at the trial; neither he nor Sweetland ever offered to return it or made any objection to it. It does not appear when the plaintiff learned that it was signed by persons who were not officers when they so signed. The declaration in this action was filed on February 4,1922.
All the testimony as to terms of the contract is found in the following quotations from the report. The defendant testified “ that just before she left for Onset in July, 1921, she had a talk with Turin and authorized him to sell two hundred and fifty shares of her stock in said company.” Turin testified “ that the plaintiff was disappointed and he then informed him that the defendant was going to take one
The judge of the Municipal Court found for the defendant and reported the case, after refusing the following requests by the plaintiff for rulings:
“1. That upon all the evidence and as a matter of law the defendant Lydia E. Keith has not transferred and delivered any title to a certificate, and to the shares represented thereby, of any stock of the Friendswood Texas Oil Company, and which she agreed to transfer and deliver to Fred A. Sweetland, or the plaintiff, who is the assignee of said Fred A. Sweetland.
“ 2. That upon all the evidence and as a matter of law, the defendant Lydia E. Keith, has not transferred and delivered any title to a certificate, and to the shares represented thereby, being specifically, two hundred and fifty shares of the stock of the Friendswood Texas Oil Company owned by her, and which she agreed to transfer and deliver to Fred A. Sweetland, or the plaintiff, who is the assignee of said Fred A. Sweetland.
“ 3. That upon all the evidence and as a matter of law the plaintiff is entitled to recover.”
No question of pleading is before us on these requests. Barry v. Woodbury, 205 Mass. 592. Norris v. Allen, 217 Mass. 573.
The question as .to the nature of the defendant’s obligation under the contract is, whether she agreed to sell and
The plaintiff paid the consideration in advance and nothing remained to be done by him except to accept the stock if properly tendered. G. L. c. 106, §§ 30, 31. While it does not affirmatively appear when the defendant was required to deliver the stock to the plaintiff, G. L. c. 106, § 32, the general principle that, when no time for performance is set, the duty is to perform within a reasonable time, Cohen v. Wintman, 236 Mass. 471, Williston on Sales, § 451, is applicable; and under the circumstances of the present case, which include payment in advance and the reasons given by Tutin for not making delivery on the date of payment, it was the defendant’s duty to perform within a reasonable time, at least to the extent of becoming able to deliver the stock, and giving the purchaser such notice that he could accept delivery. See Williston on Sales, § 447; compare Spooner v. Baxter, 16 Pick. 409; National Coal Tar Co. v. Malden & Melrose Gas Light Co. 189 Mass. 234.
Although what is a reasonable time is ordinarily a question of fact, it may be dealt with by the court as a question of law, when there is no room for dispute. Gilmore v. Wilbur, 12 Pick. 120. Loring v. Boston, 7 Met. 409, 413. Lewis v. Worrell, 185 Mass. 572, 575.
If the contract was to sell and deliver property so fluctuating in value as shares of stock, the period of six months from July, 1921, to the beginning of the year 1922 was an unreasonable time for performance; and as the only evidence' of an attempted delivery within this period was the sending of the certificate on November 2, the materiality of the first and second requests is obvious.
If the contract made by the defendant was to sell and deliver the stock, there was a total failure of consideration; and the plaintiff can recover the amount paid and he is not “ bound to affirm the contract by an action for damages.” Cohen v. Wintman, supra. Merriam v. Wolcott, 3 Allen, 258. The first and second requests would therefore be, in this aspect of the case, material; and the refusal to give them was erroneous, and prejudicial to the plaintiff.
In the case at bar, requests for rulings of law, which in a jury trial would be in the nature of instructions, were wrongly refused and were material to the case if the contract of the defendant was for a sale and delivery of the stock. It cannot be said, as matter of law, upon the evidence, that the defendant’s contract was merely to authorize the corporation to issue the stock to Sweetland or to the plaintiff; and it is impossible to determine whether the court so found or not, as it did not refuse the rulings as immaterial, and may have considered them material but erroneous, and believed the certificate to be valid against the corporation on the ground of estoppel.
If the contract was found to be for sale and delivery, the plaintiff would be entitled to recover as matter of law; if, however, the contract was only to authorize the company to issue the stock to Sweetland or the plaintiff, a finding for the defendant is warranted.
A majority of the court are of opinion, for the reasons stated, that the order of the Appellate Division dismissing the report should be reversed, and a new trial granted.
So ordered.