244 Mass. 378 | Mass. | 1923
The judge before whom the case was tried without a jury determined that through the fraud practised by the defendants, a firm of brokers, the plaintiff had been misled in the purchase of certain stocks as specified in the record, and he assessed damages and ordered judgment accordingly. The finding, if warranted, is conclusive. American Malting Co. v. Souther Brewing Co. 194 Mass. 89. The plaintiff upon discovery of the misrepresentations could affirm the sale, retain the stocks, and without a tender recover damages, in an action of tort for the •difference in value at the time when she bought, and the value as represented, or tender back the stocks with the dividends received and recover in an action of contract the money paid with interest. Whiting v. Price, 172 Mass. 240. Whiteside v. Brawley, 152 Mass. 133. Goodwin v. Dick, 220 Mass. 556. The declaration us amended contains counts which apparently take both positions. But the joinder was permissible, and on the record no question of ■election having been raised, the trial proceeded on the basis of disaffirmance. Whiteside v. Brawley, supra. See Crafts v. Belden, 99 Mass. 535. It was therefore necessary for the plaintiff to prove a tender and the judge found that a sufficient tender had been made which the defendants refused, and declined to rule that “Upon all the evidence the defendants never refused a tender, nor an offer of tender, by the plaintiff of all the benefits of the transaction received by the plaintiff.” The question whether the ruling should have been given is the only question presented on the record. The evidence warranted his conclusion that the certificates with the only dividend check she had received were unconditionally presented, with a demand for payment of the price. It was sufficient unless she was required also to tender $61.37 to which we shall presently refer. Brown v. Hartford Fire Ins. Co. 117 Mass. 479. It is further contended that the property tendered should have been deposited with the court and that the tender was not good unless renewed at the trial. The defendants cite no case supporting their position. It has been held that where specific
So ordered.