Pearson v. Mason

• Citation: 120 Mass. 53
• Parties: Henry Pearson v. Nicholas Mason
• Decision Date: 04 March 1876
• Court: United States State Supreme Judicial Court of Massachusetts

120 Mass. 53

Henry Pearson v. Nicholas Mason

Supreme Court of Massachusetts

March 4, 1876

Argued November 12, 1875. [Syllabus Material] [Syllabus Material]

Contract. The first and third counts of the declaration alleged that the plaintiff sold to the defendant a certain piece of land on Joy Street in Somerville, and ten shares of the capital stock of the American Steam Safe Co., and received in payment therefor from the defendant four hundred shares of the capital stock of the Haverhill Lime Co., of which the par value was $ 5 per share; that the defendant at the time, and in consideration of this sale, agreed to buy the four hundred shares of the Haverhill Lime Co., and, upon request by the plaintiff, pay him therefor $ 2.50 per share that the plaintiff had often offered to the defendant to sell and assign the shares to him, and had demanded the agreed payment therefor; that the defendant had neglected to pay the same, and owed the plaintiff $ 1000 and interest.

The second and fourth counts alleged that the defendant agreed with the plaintiff, that if the plaintiff would introduce the defendant to any party who would trade with him for certain mill property in Haverhill, New Hampshire, the defendant would pay the plaintiff the sum of $ 500; that the plaintiff did introduce to him a party who agreed to trade and did trade with him for the said mill property; that the defendant owed the plaintiff the sum of $ 500, which, though requested, he had failed to pay.

Answer, a general denial.

Trial in the Superior Court, before Putnam, J., who allowed a bill of exceptions in substance as follows:

The plaintiff testified that he was to give the defendant the house on Joy Street and ten shares of the American Steam Safe Co. stock, for four hundred shares of the Haverhill Lime Co. stock, and that the defendant said, if I would trade with him for the stock, that he would take it back at any time and give me fifty cents on a dollar for it; that this was the last of October, 1869; that he was to pay interest on the house up to November 1, 1869; that he never knew any one in the trade but the defendant, and never heard or knew of any agency in the matter; that he delivered to the defendant a deed of the house in question and ten shares of the American Steam Safe Co. stock, and received from the defendant the four hundred shares of the Haverhill Lime Co. stock; that he subsequently called upon the defendant to give him the fifty cents on a dollar for the stock; that the par value of the stock, upon which the fifty per cent. was to be paid, at the time of the trade was agreed to be five dollars, and that the defendant refused to comply with this request thus made. The plaintiff also put in testimony in addition to his own, tending to sustain his own testimony. The plaintiff further testified that, when he called upon the defendant to give him the fifty per cent., he took the stock out of his pocket and showed it to him, and laid it on the table, the stock being indorsed in blank. The plaintiff at the trial offered to assign and transfer the stock to the defendant.

The defendant testified that in either January, February or March, 1869, the plaintiff wanted him to find some one with whom he could make an exchange of property and get some Haverhill Lime Co. stock, the defendant being agent of the company, or, that the defendant might procure him some, and he, the plaintiff, would pay him for his trouble; that he immediately set about to procure said Lime Co. stock, and, on November 5, wrote to the plaintiff that he had got "the stock fixed for him," and in order to do so had taken $ 575 worth of the stock, part of which was for his commission, from one Ransom; that he had a commission from both sides; that the papers were passed November 17, 1869, when the plaintiff gave him the following as his commission:

"Boston, Nov. 17, 1869. For value received I promise to transfer to Nicholas Mason twenty shares in the Haverhill Lime Co. stock, when said Mason may call for the same, amounting to $ 100 at $ 5 per share.

Henry Pearson."

The defendant also testified that he never promised to pay the plaintiff fifty per cent. of the par value of said stock, and denied that any such statements were made as the witnesses for the plaintiff had testified to. He further offered in evidence a paper, a copy of which is printed in the margin, ^[*] which he contended was the agreement which was entered into between him and the plaintiff, but which the plaintiff denied. This paper was produced by the plaintiff at the call of the defendant.

The plaintiff further testified that in 1871 the defendant was in his office and "said if I would find anybody that would trade with him for the mill and land, that he would pay me $ 500 in cash, as soon as the agreement was made between him and the parties;" and that he found one Woodbury, and introduced him to the defendant in his office; and that they (the defendant and Woodbury) made an agreement to exchange property in writing, which was produced, dated January 13, 1872.

The testimony as to whether the defendant acted as the agent of the plaintiff or of other parties, and, if of other parties whether the plaintiff knew it or not, in the exchange of property referred to in the first and third counts, was conflicting. The defendant requested the judge to rule "that if the...