276 Mass. 458 | Mass. | 1931
This is an action of contract or tort brought in the Superior Court to recover from the defendant, a corporation engaged in the business of selling invéstment securities, the proceeds, with interest, of a check for $3,120 signed by the plaintiff and collected by the defendant. The case was heard on an agreed statement of facts by a judge, sitting without jury, who found for the plaintiff in •the sum of $3,336.84 and ordered judgment therefor. The case is' réported to this court at the request of the parties upon their agreement "that if upon the facts stated . . . the plaintiff was entitled to a finding . . . there should be judgment in the amount of $3,336.84 and costs; otherwise judgment to be entered for the defendant.”
The plaintiff was not'entitled to a finding upon the facts stated.
After the transaction above described the plaintiff endeavored to ascertain from Glass why he had not received the fifteen shares of stock, but was unable to obtain any information. Glass, however, by letter, inquired of the defendant why a certificate of fifteen shares had not been received by the plaintiff and was informed by letter that the transfer had not been made because payment for the
The parties agreed that "it is a custom of the investment security trade that a brokerage concern selling securities retains all securities in a specific sale or order as collateral security for the payment of the amount due to said concern on such sale or order, refraining from transferring any part or the whole of the same until the entire sale dr order is paid for.”
There was no contract between the plaintiff and the defendant for the purchase and sale of any shares of the stock in question. The contract originally made between Glass and the defendant was an indivisible contract for the purchase by Glass and the sale by the defendant of fifty-five shares. Glass had no power as agent of the plaintiff to bind him by such a contract. The plaintiff, therefore, had no right thereunder as against the defendant before the transmission of his check to the defendant by Glass, as an enclosure, in the letter requesting that fifteen shares be registered in the name of the plaintiff.
By transmitting the check to the defendant, with the accompanying letter, Glass purported to make a payment on account of his contract to buy fifty-five shares of stock and not to make an independent offer to buy fifteen shares. Under the contract payment by Glass for fifty-five shares and delivery by the defendant of that number of shares
There was no express agreement by the defendant to deliver fifteen shares upon payment therefor and it is unnecessary to determine the effect of such an agreement. Nor was such an agreement to be implied from the defendant’s acceptance and cashing of the check. As the amount covered by the payment was admittedly due from Glass to the defendant he could not make acceptance of this payment by the defendant conditional upon, the defendant’s applying the check or its proceeds as full payment for fifteen shares and registering those shares in the name of the plaintiff. Since the condition was one which Glass had no right to impose, and for that reason was void, the defendant was not put to an election to refuse the check or to take it on the condition on which it was offered, but could take it free of the void condition which Glass sought to impose. The principle established by Whittaker Chain Tread Co. v. Standard Auto Supply Co. 216 Mass. 204, 208-209, is applicable to the circumstances of this case. See also MacDonald v. Kavanaugh, 259 Mass. 439, 444-445; Puritan Wool Co. v. Winsted Hosiery Co. 263 Mass. 467, 471; Shumaker v. Lucerne-in-Maine Community Corp. 275 Mass. 201, 205.
Though Glass had no authority to use the plaintiff’s check to make a part payment on his own contract to buy
So far as appears from the" facts stated the check was taken by the defendant in good faith and, “at the time it was negotiated” to the defendant, the defendant “had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.” G. L. c. 107, § 75. To constitute such notice the defendant “must have had actual knowledge of the infirmity or defect, or knowledge of such facts that . . . [its] action in taking the instrument amounted to bad faith.” G. L. c. 107, § 79. The form of the check did not indicate that Glass was not the owner of it and entitled to apply it to the payment of his debt to the defendant. Boston Steel & Iron Co. v. Steuer, 183 Mass. 140. National Investment & Security Co. v. Corey, 222 Mass. 453. McLaughlin v. Paine Furniture Co. 245 Mass. 377. Johnson & Kettell Co. v. Longley Luncheon Co. 207 Mass. 52, is distinguishable. Nothing in the circumstances of the case disclosed to the defendant that Glass was acting as an agent rather than as a principal in transmitting the check. In this respect Fisher v. Brown, 104 Mass. 259, relied on by the plaintiff, is distinguishable. The form of the check was consistent with the statement in Glass’s
It follows that in accordance with the-terms of the report there must be judgment for the defendant. •
So ordered.