268 Mass. 21 | Mass. | 1929
This case is controlled in principle by Hall v. Paine, 224 Mass. 62, and 230 Mass. 62; in which it was decided that one who is dealt with as a broker is not at liberty, as a principal, either to buy or to sell directly to the customer stocks which he is directed, as a broker, to sell or buy for him; and that, on discovering that the broker has so dealt, the customer may repudiate the transaction and recover what he has paid with interest.
In the bill, filed October 20, 1927, the plaintiff in substance alleged that, induced by the defendant Alan Shepard & Co., Inc., on January 24, 1927, he delivered to it sixty-five shares of Lowell Electric Light corporation stock to sell
A master found, among other things, that the defendant had itself bought the electric stock at 64 and sold it the next day for 64.50, keeping the profit; and had itself sold short to the plaintiff the three hundred four shares of class A stock. He further found that the plaintiff had never ratified such action, had not known of it until October 10, 1927, and had never received nor accepted any benefit from the transaction. These findings are enough to sustain the ruling and order for
We think that filing the bill ten days after first having knowledge of the real doings of the defendant is a sufficient repudiation, in reasonable time, to enable the plaintiff to assert his right to repudiate; and that the first prayer in the bill is enough to defeat the contention that the plaintiff has elected to proceed only for the alleged fraudulent action in regard to the class A stock. Clearly the plaintiff is not precluded by failing to offer to pay for the class A stock or to demand its delivery. He repudiates any right to the stock.
No objection to the sufficiency of the pleadings to present the issue here discussed appears to have been taken at the hearings before the master and the Superior Court. No exception to the report was taken upon this ground. Both the report and the decree indicate that the issue was considered. After full hearing of the merits, we think the defect, if any, which could have been cured by slight amendment based upon facts disclosed at the hearing, must be treated as waived, and it is not open at this stage of the proceedings.
It is not necessary to discuss the other contentions of the defendant based upon other parts of the report. The refusal to recommit the master’s report for additional statements of evidence which does not touch this decisive element is immaterial; and so is the decree overruling the exceptions to the report. We do not mean to imply that there was error therein.
Decree affirmed with costs.