177 Mass. 160 | Mass. | 1900
The material facts in this case are almost id&itical with those in Boynton v. Woodbury, 101 Mass. 346, in which it was held that the contract was, in legal effect, to give the plaintiff an option for a year to treat the transaction as a loan, with collateral security, to be repaid on a return of the stock, or to treat it as an absolute sale. In that case it was held that a notice to the defendant within a year of the plaintiff’s election to have his money back was sufficient to entitle the plaintiff to maintain the action without a tender of the stock, provided he kept the stock in his possession and was ready to reconvey it up to the time of the trial, and then offered to re-convey. Perhaps the decision of the present case might rest on this as an authority.
But if we construe the contract more strictly, and hold that it was an agreement by the defendant to purchase on tender of an assignment of the stock, there was evidence from which the jury might have found for the plaintiff. As we understand the case, the verdict was directed for the defendant solely on the ground that the plaintiff failed to tender an assignment of the stock on April 8, 1899. The right to a tender before payment was for the benefit of the defendant, and he might waive it. There was evidence that the corporation was founded on fraud, and that the stock was worthless from the time it was issued. The plaintiff testified that in February or March, 1899, he called at the defendant’s “ place of business in Boston and tendered the stock, . . . and demanded a return of his money. That the defendant
Other evidence that the stock was never of any value, and that for a long time prior to the expiration of one year from the date of the contract it was considered and treated by the defendant and Carpenter as worthless, was offered by the plaintiff and excluded. The plaintiff’s testimony, taken in connection with this evidence, would have well warranted the jury in finding that tender of an assignment of the stock at the end of the year was waived by the defendant. Peebles v. Boston & Albany Railroad, 112 Mass. 498. Andrews v. Knowlton, 121 Mass. 316. Nashua & Lowell Railroad v. Page, 135 Mass. 145. Williams v. Kimball, 135 Mass. 411. Papineau v. Wentworth, 136 Mass. 543.
The defendant’s statement was equivalent to a declaration that he would refuse the stock if a tender was subsequently made, and that it would be useless to make a tender of it. Under these circumstances the jury should have been permitted to find that a subsequent tender was waived. See Gilmore v. Holt, 4 Pick. 258; Southworth v. Smith, 7 Cush. 391; Hazard v. Loring, 10 Cush. 267; Hills v. Exchange Bank, 105 U. S. 319; Ashburn v. Poulter, 35 Conn. 553; Barker v. Parkenhorn, 2 Wash. C. C. 142.
Exceptions sustained.