Allen v. Fuller

• Decision Date: 30 October 1902
• Citation: 65 N.E. 31,182 Mass. 202
• Parties: ALLEN et al. v. FULLER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

182 Mass. 202

65 N.E. 31

ALLEN et al. v. FULLER et al.

Supreme Judicial Court of Massachusetts, Worcester.

October 30, 1902

COUNSEL

Chas W. Wood and Chas. H. Wood, for plaintiffs.

Herbert Parker and Chas. C. Milton, for defendants.

OPINION

LORING J.

We are of opinion that the exceptions in this case should be overruled.

1. The first ruling requested by the defendant was that a verdict in his favor should be entered as matter of law. In support of this he first contends that it was not shown what 10 shares of Parrott and 10 shares of C., B. & Q. were, and therefore the court cannot, as matter of law, say that they were securities or commodities within St. 1890, c. 437. But without going further, it is enough to dispose of this contention that these were not the only securities dealt in and therefore a general verdict for the defendant could not have been entered, even if his position is correct. His next contention is that the relation between the parties was that of principal and agent, and not of buyer and seller. But the first three counts are common counts, and the fourth is a special count within the second clause of St. 1890, c. 437, § 2. His third and fourth contentions are that the transactions were entirely between the defendants' agent, Gaylord, and the plaintiffs, and there was no proof of any agency on the part of Gaylord beyond a general agency, and that does not include the making of the illegal contracts which are the subject of this action. The plaintiff relies on the cases holding that a sale of liquor by a clerk in a place kept by the defendant is sufficient evidence of a sale by the defendant through his agent. Com. v. Holmes, 119 Mass. 195; Com. v. Perry, 148 Mass. 160, 19 N.E 212. But these cases do not quite cover the case at bar, for the burden of showing a license is by statute on the defendant, and therefore, in the absence of proof of a license, all the business carried on in the place is necessarily illegal. See Com. v. Briant, 142 Mass. 463, 8 N.E. 338, 56 Am Rep. 707. But we think that in this case the jury were warranted in finding that Gaylord was the defendants' agent to enter into the illegal contracts complained of. Both plaintiffs testified that they had conversations with the defendant Fuller at the office of the partnership in Boston, and were told that Gaylord was the manager of their business in Worcester. The door of the office in Worcester where the transactions in question were made bore the name of the partnership. It was shown that the transactions made by each plaintiff at the office in Worcester were transactions within St. 1890, c. 437, at there was no evidence that any other kind of transactions were ever made, or that any other kind of business was carried on there. We think that that is sufficient. The defendants' fifth contention in support of his request for a verdict in his favor is that the evidence discloses no transactions within the meaning of the act. But after the evidence elicited by the defendants on...