244 Mass. 10 | Mass. | 1923
The defendant at the close of the evidence, and again at the conclusion of the instructions to which no exceptions were taken, duly excepted to the refusal of the judge to rule as requested “that upon all the evidence the plaintiff cannot recover.”
The jury upon conflicting evidence would have been warranted in finding the following facts: The defendant was the president of the Logan Johnson, Limited, a corporation which manufactured jams, jellies, crushed fruits and syrups and also dealt in bakers’ supplies. The plaintiff, who previously had been engaged in selling food products, had an interview with the defendant which resulted in his being engaged as general sales manager at an annual salary of $6,000, and he entered upon .the discharge of his duties. After becoming manager, interviews followed between him and the defendant in which the defendant as president requested the plaintiff to become a vice-president of the company, and later the plaintiff with one Harris and one Calhoun, employees of the company, were elected vice-presidents. A subsequent interview at which, the plaintiffs Harris and Calhoun were present took place at the defendant’s request, when the defendant said “that he thought we should all own stock in the company,” and stated “that he could get the Old Colony Trust, he believed, to help to finance any purchase of stock that we might make by us paying a small amount of money.” Very shortly after this proposition had been made, the plaintiff with Calhoun and Harris again met the defendant, who then said that “he was very sorry but the Old Colony Trust had turned down the proposition, and that it would be impossible for him to get us stock that way, but he did know that Mr. Logan and Mr. Johnson — they were the old concern — had some stock that we could purchase at $50 par, which was $5 less than he would have sold us stock had he been able to put the proposition through the Old Colony Trust. The price then was to be $55.” It appeared that the stock the plaintiff was to buy was the stock “of a new
While the ruling asked dealt only with the evidence and not with the pleadings, the case was tried on the footing that the defendant sold the stock to the plaintiff with an agreement for repurchase. Tangney v. Sullivan, 163 Mass. 166, Garfield v. Peerless Motor Car Co. 189 Mass. 395, Lafrance v. Desautels, 225 Mass. 324, F. F. Woodward Co. v. Fitchburg, 236 Mass. 365. The instructions to the jury were, that the first question “is for you to say whether or not the defendant sold the stock to the plaintiff’s wife or the plaintiff’s wife acquired the stock and not the plaintiff in this action, because if you so find, you should find for the defendant. The other question is, Did the defendant sell stock to the plaintiff? If you find that the defendant did not sell stock to the plaintiff, even though you should find that he made the promise which the plaintiff says he did, you should find for the defendant. And the next question is, Did the defendant make this promise? It is for you to say whether or not the defendant did make this promise, and it is for the plaintiff to prove by a fair preponderance of the evidence that the defendant did make this promise. . . . That is, the defendant himself must have sold this stock and made the promise, and that that was an inducement by which the plaintiff became a stockholder. In this case, unless those two elements are there together, that is, sale of stock by the defendant to the plaintiff and the promise, those two, the plaintiff could not recover in this action.”
It is plain that the defendant never acquired title to the stock, which was always in the name of Logan and of Johnson, by whom the shares were directly transferred. The plaintiff fully understood that the defendant did not own the stock; nor was he undertaking to sell stock, title to which was subsequently to be acquired. The only undertaking on his part was that he would do what he could to persuade Logan and Johnson to sell to the
If this result is reached, the defendant asks that judgment in his-favor be ordered. But we are not prepared to accede to this request. The plaintiff may desire to amend by adding a second count declaring on a contract of indemnity, and he should not be deprived of this privilege. See Donovan v. Walsh, 238 Mass. 356, 362.
Exceptions sustained.