Todd v. Bishop

• Decision Date: 31 January 1884
• Citation: 136 Mass. 386
• Parties: George W. Todd v. T. B. Bishop
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

136 Mass. 386

George W. Todd v. T. B. Bishop

Supreme Court of Massachusetts

January 31, 1884

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Suffolk. Contract, for money had and received, with a bill of particulars of dates and amounts. Writ returnable to the Superior Court. The answer was as follows: "The defendant denies each and every allegation, item, claim, and demand contained in the plaintiff's writ and declaration. He says that he has duly accounted for and paid all moneys ever received by him of the plaintiff, and he does not owe the plaintiff any sum for any cause whatever." The plaintiff then filed, without obtaining leave of court, the following replication: "And now comes the plaintiff and replies to the defendant's answer as follows, to wit, that the plaintiff engaged the defendant as his agent and broker, and directed the defendant to purchase for the plaintiff certain stocks and bonds, and for that purpose the plaintiff deposited with the defendant the moneys set forth in the plaintiff's declaration filed in this action. And the plaintiff says the defendant did make returns to the plaintiff that he, the defendant, had bought for the plaintiff certain shares of stocks and certain bonds, and the defendant did render to the plaintiff accounts of such alleged purchases, which at the time of the rendition of said accounts, and for a long time thereafter, the plaintiff supposed the defendant had bought, as the defendant represented he had. And the plaintiff further says, that, believing such representations of the defendant as to said alleged purchases to be true, and not knowing the contrary thereof, he gave to the defendant certain orders to sell various stocks and bonds, and the defendant represented and pretended to the plaintiff that he, the defendant, had made the sale as the plaintiff ordered. And the defendant rendered to the plaintiff certain sold bills and accounts of said alleged sales, and pretended and represented that he had made them as the plaintiff ordered, all which representations and pretences were false and fraudulent. And the plaintiff avers that the defendant never at any time made any purchases of stocks or bonds for the plaintiff, nor did the defendant made any sales of stocks or bonds on behalf of the plaintiff, nor did the defendant execute any of the plaintiff's orders; and that all of the defendant's representations and pretences in the premises were wholly false and fraudulent, and were made by the defendant for the purpose of misleading the plaintiff, and with an intention to deceive, cheat, and defraud him; and the defendant never at any time paid to the plaintiff any money, as alleged in his said answer, nor did the defendant ever pay any money for or on behalf of the plaintiff. And so the plaintiff says that the defendant never in any way accounted to him for said money, or paid the same to or for him, but owes the plaintiff the amount set forth in the plaintiff's declaration."

The plaintiff filed forty interrogatories to the defendant. The defendant answered the first eight interrogatories, but declined to answer the others. The plaintiff then filed a motion that he be ordered to answer them; and the defendant filed a motion to strike out the plaintiff's replication. Knowlton, J., overruled the defendant's motion; and ordered the defendant to answer all of the interrogatories except the 9th, and such parts of four others as called for a statement of the contents of a certain certificate of stock. The defendant alleged exceptions.

The case was afterwards tried before Staples, J., who allowed a bill of exceptions, in substance as follows:

The plaintiff's attorney, after reading the writ, declaration, and answer, was about to read the plaintiff's replication, when the defendant's counsel objected to the reading thereof, and asked the judge to rule that the replication was not called for by the pleadings, and was irrelevant to the issue, and that the replication should not be read or used at the trial. The judge declined so to rule, but ruled that the replication might be read to the jury as a part of the pleadings.

There was evidence tending to show that the defendant carried on business in Boston as a stockbroker, under the style of T. Brigham Bishop & Co., and that the plaintiff paid to him the several amounts in his bill of particulars set forth, on account of certain alleged stock transactions between the plaintiff and the defendant, concerning the nature and character of which transactions the evidence was conflicting.

The plaintiff also put in evidence, against the objection of the defendant, the interrogatories to the defendant, and his answers thereto, except the 9th, which was excluded. These interrogatories asked whether the defendant bought any shares of stock for the plaintiff, and, if so, of whom they were bought, and at what price; also, whether he had sold any shares of stock for the plaintiff, and, if so, to whom, and at what price; and inquired specifically as to each transaction set forth in the plaintiff's bill of particulars. The 26th interrogatory inquired whether certain stock was listed at any stock exchange other than the New York stock exchange. The 33d interrogatory inquired how the defendant was paid for certain stock when he sold it, whether "by check or cash. If by check, by whom was it drawn? on what bank did you

collect the same? If yea, when, where, and how?" The defendant's answer to the 26th interrogatory was, "I don't know;" and his answer to the 33d was, "I was paid nothing, because the balance was against me on settlement of the difference with the party of whom I purchased."

The purport of the defendant's answers to the other interrogatories was, that he had bought the stocks inquired about for the plaintiff on a margin, and had sold them on his account; but that it was impossible for him to state with certainty of whom he bought any specific lot, or to whom he sold it, as purchases and sales were made of larger lots than the plaintiff's, for other customers, on the same dates, and there was no way of distinguishing between them; that some were bought in Boston, and some in New York; that he thought that most, if not all, of the plaintiff's stocks were bought in New York, and, probably, the greater part of Henry Clews and Company; that the defendant, in filling the plaintiff's orders, bought on a margin, and sold in the same way, receiving or paying the difference between the price at which the shares of stock or bonds were bought, and that at which they sold, as the case might be, with commissions and interest, and having no certificates.

Annexed to the defendant's answers was a schedule of his purchases and sales made on account of the plaintiff.

The plaintiff admitted, on cross-examination, that he never had control of money enough to buy and pay in full for the lots of stock above mentioned; and that he never in fact intended or contemplated doing so, or taking or seeing a certificate thereof, but only intended and desired to speculate for the purpose of realizing the profits accruing upon a settlement of the differences, in case the differences were in his favor at the times of closing the transactions, or to pay the loss, if against him; that he "simply dealt in margins;" also, that, if it were really true that the defendant actually bought the stocks, the result on the settlement would have been exactly the same to the plaintiff as it had already been, that is, that the defendant's settlements with the plaintiff had been without question based on the actual fluctuations of the several stocks. The plaintiff also testified that he supposed that the defendant held the certificates of the stocks purchased, and was not aware and was not informed that the defendant bought the stocks upon margin; but this was denied by the defendant in his testimony.

The plaintiff also offered in evidence the deposition of Henry Clews. The defendant objected to said deposition as a whole, and to the several interrogatories and answers therein as immaterial and incompetent, and because no foundation had been laid for said deposition and for the several interrogatories therein, and because the answers were not responsive or complete, and were impertinent; and also because the deponent testified to the substance of book entries not made by himself, but by other persons. The judge excluded the 11th, 13th, and 15th interrogatories, and the answers thereto; and allowed the rest of the deposition to be read to the jury. The contents of this deposition sufficiently appear in the opinion.

It was in evidence, and the plaintiff admitted, that the defendant gave to him, and he accepted, at the time of making each and every payment to the defendant, a receipt for each of the several sums of money paid the defendant, each of which receipts expressed that the sum therein mentioned was deposited with the defendant, to be used by him, as margin or collateral security, to protect him from loss in any transaction with the plaintiff, and that, if at any time the said amount should not be sufficient for that purpose, the defendant might close such transactions actions and sell at the New York or Boston stock exchange any stocks, bonds, and securities held by him for account of the...