Armstrong v. Orler

• Decision Date: 08 January 1915
• Citation: 220 Mass. 112,107 N.E. 392
• Parties: ARMSTRONG v. ORLER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

220 Mass. 112

107 N.E. 392

ARMSTRONG v. ORLER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 8, 1915

COUNSEL

Harold Williams, Jr., of Boston, and Leonard C. Bigelow, of Framingham, for appellants.

Foster Colby & Pfromm, of Boston, for appellee.

OPINION

LORING J.

This case comes before us on an appeal taken by the defendant from a final decree. The decree was entered pursuant to findings of fact made by the judge who heard the case in the superior court. The evidence on which these findings were made is not part of the record. The findings therefore are final, and the only question before us is whether on these findings the decree entered was proper.

The judge found that on April 7, 1913, the defendant sold the plaintiff fifty shares of the common stock of the Birmingham Ensley & Bessemer Railroad Company, and later that he made another sale to the plaintiff which it is not necessary to state. He found that the defendant made the agreements that the plaintiff has claimed were made by him as to both of these transactions. The plaintiff's testimony as to both of these transactions was this:

'All these purchases were made on oral agreements, made as a part of each contract of sale, that the defendant would buy back from the plaintiff these stocks and bonds at any time he (the plaintiff) desired to return the same, and pay the plaintiff therefor the amounts that he had paid to the defendant as the purchase prices therefor.'

On June 19, 1913, there was another transaction between the plaintiff and the defendant which resulted in the defendant's delivering to the plaintiff ninety shares of the common stock of the Beacon Mortgage & Realty Company, and the plaintiff testified that he 'received this stock with an agreement, made as a part of the transaction, in substance that the defendant would purchase said stock and take the same off his (the plaintiff's) hands for the amount he paid for it at any time the plaintiff so desired.' The judge found that the defendant 'did so agree.'

On September 18, 1913, the plaintiff borrowed of the defendant $500 and pledged the fifty shares of the railroad stock as collateral. On October 14, 1913, the plaintiff borrowed of the defendant $2,500, on an agreement to pay for principal and interest $2,600 on January 1, 1914, and pledged with the defendant as security the ninety shares of the stock in the Beacon Mortgage & Realty Company. On December 31, 1913, the plaintiff, through his counsel, demanded payment of the purchase price of the railroad stock less the $500 and interest owed by him on the loan for which that stock was pledged as collateral and $2,000, being the difference between the purchase price of the Beacon Mortgage & Realty Company stock and the $2,500 borrowed on October 14, 1913. On the same December 31, 1913, the defendant demanded payment of the two notes of $500 and $2,500.

This bill was filed on January 1, 1914, to compel the defendant to take back the fifty shares of railroad stock and the ninety shares of Beacon Mortgage & Realty Company stock and pay the plaintiff the difference between the purchase price of these two sets of securities and the amounts due the defendant under the two loans mentioned above for which these securities had been pledged as collateral security. A decree to that effect was entered in favor of the plaintiff by the presiding judge, and it is from that decree that this appeal is taken.

1. The first objection made by the defendant is that his oral agreement to take back the stock was a contract for the sale of goods, wares or merchandise within the statute of frauds (R. L. c. 74, § 5) and so not 'good or valid.' But it was found by the judge that this agreement to buy back these securities was a part...