| Mass. | Jan 2, 1895
1. So far as the defendant Goode is concerned, we are of opinion that there was no evidence at the trial below which warranted the presiding justice in finding against him.
The admissions of Church, not made at the time the contract was executed, (see Smith v. Collins, 115 Mass. 388" court="Mass." date_filed="1874-06-29" href="https://app.midpage.ai/document/smith-v-collins-6417734?utm_source=webapp" opinion_id="6417734">115 Mass. 388,) were not admissible against Goode in respect to the scope of the partnership business. Tuttle v. Cooper, 5 Pick. 414. See also Ostrom v. Jacobs, 9 Met. 454.
2. As to Church, we see no reason to doubt the correctness of the finding against him. lie agreed to purchase certain shares of stock on the happening of a contingency. This was an original promise, and not a mere guaranty. Monk v. Beal, 2 Allen, 585. Thayer v. Wild, 107 Mass. 449" court="Mass." date_filed="1871-09-15" href="https://app.midpage.ai/document/thayer-v-wild-6416523?utm_source=webapp" opinion_id="6416523">107 Mass. 449. The seal imports a consideration, and none need be proved.
Although the contract did not bind the partnership, it bound the defendant Church. The fact that he attempted to bind his partner, and did not succeed, does not avoid his own act. Wiggin v. Lewis, 12 Cush. 486.
At the time that the note of Ellis matured, the plaintiff had in his possession a certificate of stock of the Burlington Electric Railway Company, made out in the name of Ellis. On the back of the certificate was a printed form of transfer and a power of attorney to make a transfer, both signed in blank by Ellis. This was sufficient to transfer the certificate to the plaintiff. Andrews v. Worcester, Nashua, & Rochester Railroad, 159 Mass. 64" court="Mass." date_filed="1893-05-17" href="https://app.midpage.ai/document/andrews-v-worcester-nashua--rochester-railroad-6424565?utm_source=webapp" opinion_id="6424565">159 Mass. 64. By the terms of the contract between Ellis and the plaintiff, the latter had authority to sell the stock, on breach of the. promise to pay the note, without notice to Ellis. While the plaintiff could not sell the pledge until there had been a breach of his contract with Ellis, we see no reason why he could not, before such breach, make a valid agreement to sell it when this contingency should happen.
The contention of Church that a foreclosure of the pledge
These considerations dispose of all the material requests for instructions except the ninth. As to this, it may be remarked that the fact that there was no evidence of the value of the stock is immaterial. By the terms of the agreement all the shares were to be purchased, or so many of them as should amount to the sum due on the note at maturity, at fifteen dollars a share.
Although the action is against two persons as partners, and one only is held liable, judgment may be entered against him alone, under the Pub. Sts. c. 171, § 5, and no amendment of the declaration is necessary. “ The legal effect of the statute is, ■that such discrepancy between the contract declared on, and .that proved, shall be deemed no variance.” Wiggin v. Lewis, 12 Cush. 486. See also Leonard v. Robbins, 13 Allen, 217; Downing v. Coyne, 121 Mass. 347" court="Mass." date_filed="1876-11-27" href="https://app.midpage.ai/document/downing-v-coyne-6418726?utm_source=webapp" opinion_id="6418726">121 Mass. 347; Merchants’ Ins. Co. v. Abbott, 131 Mass. 397" court="Mass." date_filed="1881-09-13" href="https://app.midpage.ai/document/merchants-insurance-co-of-providence-v-abbott-6420393?utm_source=webapp" opinion_id="6420393">131 Mass. 397, 407.
The result is, that the exceptions of the defendant Goode are sustained, and those of the defendant Church are overruled.
So ordered.