Arnold & Sears, Inc. v. Bazirgan

• Decision Date: 01 April 1931
• Citation: 175 N.E. 483,275 Mass. 207
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: ARNOLD & SEARS, Inc., v. BAZIRGAN. BAZIRGAN v. ARNOLD & SEARS, Inc.

275 Mass. 207

175 N.E. 483

ARNOLD & SEARS, Inc.,

v.BAZIRGAN.

BAZIRGAN

v.ARNOLD & SEARS, Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

April 1, 1931.

Exceptions from Superior Court, Suffolk County; Joseph Walsh, Judge.

Cross-actions by Arnold & Sears, Inc., against Charles S. Bazirgan and trustee, and by Charles S. Bazirgan against Arnold & Sears, Inc., and trustee. Verdict for plaintiff in the first case, and verdict for the defendant in the second cases, and the defendant in the first case and the plaintiff in the second case bring exceptions.

Exceptions overruled.

S. P. Sears, of Boston, for Arnold & Sears, Inc.

J. H. Duffy, of Boston, for Bazirgan.

PIERCE, J.

These are cross-actions of contract arising from the same facts. They were tried together to a jury. At the close of all the evidence and before argument the defendant in the case of Arnold & Sears, Incorporated, against Bazirgan presented a motion ‘that the court order a verdict for the defendant.’ The judge denied the motion and the defendant duly excepted. The plaintiff in the case of Bazirgan against Arnold & Sears, Incorporated, as the close of all the evidence presented a motion ‘that the Court order a verdict for the plaintiff.’ This motion was denied and the plaintiff duly excepted. At the close of all the evidence and before argument, the plaintiff Bazirgan, in writing, requested the judge to give the following instructions: ‘1. If the defendant purported to act as the plaintiff's broker and the defendant charged the plaintiff, without the plaintiff's knowledge, a larger sum for the 100 shares of General Gas and Electric Co. stock than the defendant paid or contracted to pay for it, the plaintiff is entitled to repudiate any agreement in regard to this stock. 2. If the defendant charged the plaintiff a higher price for the 100 shares of General Gas & Electric Company stock than the plaintiff agreed to pay, it is evidence of the defendant's liability. 3. If the defendant purported to act as the plaintiff's broker and the defendant charged the plaintiff, without the plaintiff'sknowledge, a larger sum for the 100 shares of National Cash Register A Common stock than the defendant paid or contracted to pay for it, the plaintiff is entitled to repudiate any agreement in regard to this stock. 4. If the defendant charged the plaintiff a higher price for the 100 shares of National Cash Register A Common stock than the plaintiff agreed to pay, it is evidence of the defendant's liability. 5. If the plaintiff's order for 100 shares of the General Gas and Electric stock was given to the defendant with the understanding that the plaintiff would be charged for the stock no more than the defendant paid for it plus a commission, then the fact that the defendant charged the plaintiff more for the said stock than the defendant paid for it is evidence that the stock was not purchased for the plaintiff's account. 6. If the defendant acted as the plaintiff's broker to purchase the said 100 shares of General Gas and Electric stock and the defendant was to charge the plaintiff a commission on the said purchase, then in the absence of a special agreement to the contrary, a charge by the defendant to the plaintiff for more than the defendant paid for the said stock is evidence that the said purchase, if made was made on the defendant's own account, and not on the plaintiff's account.’ The judge declined to give any of these requests and the plaintiff duly excepted. No exceptions were saved to the charge. The jury found for the plaintiff in the case of Arnold & Sears, Incorporated, against Bazirgan and for the defendant in the case of Bazirgan against Arnold & Sears, Incorporated.

The bill of exceptions contains all the material evidence relating to the questions raised by Bazirgan's exceptions in the two cases. It was agreed that the bills of exceptions of Bazirgan both as defendant and as plaintiff might be consolidated and considered as if he had filed separate bills. Arnold & Sears, Incorporated, will hereinafter be called the plaintiff, and Bazirgan will be called the defendant.

The plaintiff's action was brought to recover a balance of money allegedly due to it, as an investment broker, upon a marginal contract with the defendant. The defense relied upon by the defendant in his answer was that the transactionswere in violation of G. L. c. 137, § 4. The action of the defendant was in three counts for the same cause of action, and was to recover the amounts paid the plaintiff in the course of these transactions, alleging that they were in violation of the statute above cited.

The evidence in its aspect most favorable to the plaintiff warranted the jury in finding the following facts: An employee of the plaintiff, one Bryning, on November 4, 1925, had a conversation with the defendant at the defendant's place of business. He advised the purchase of General Gas & Electric stock as being a very good stock. Bryning knew at that time and told the defendant ‘what the market was approximately and what the market had been.’ He told the defendant ‘he would accept a marginal account.’ The defendant said a 30 per cent. margin was satisfactory to him and thereupon ordered ‘one hundred shares at the market.’ Bryning gave the order to the plaintiff. On November 4, 1925, the plaintiff sent the defendant a confirmatory memorandum, the material part of which reads: ‘We confirm that we have his day Bought for your account 100 shs General Gas & Electric A @ 61 1/2 for regular delivery * * * Statement Amount 100 shs. Description General Gas & Elec. A Price 61 1/2 Commission 17.50 Total 6167.50.’ On November 6, 1925, the defendant sent the plaintiff a check for $1,500 which the plaintiff collected.

In January, 1926, Bryning saw the defendant and suggested that he buy some National Cash Register Company common A stock which the plaintiff would offer to him at $52 per share. The defendant gave the salesman an oral order for one hundred shares. After returning to the plaintiff's office the salesman within an hour called the defendant and told him that the selling price that day was $50 a share; that he had charged him too much; that the price he gave him, $52 a share, would have to stand if the defendant wanted to keep the order as it was then selling at $54 on the street. The defendant in reply said he would prefer to let it stand. Thereupon on January 6, 1926, the plaintiff sent, and the defendant received, a confirmatory letter which reads in its part material to the issue as follows: ‘We take pleasure in confirming sale to you this day through our Mr. Bryning, for delivery when, as, and if issued of 100 shares National Cash Register Company, Common A Stock @ 52 net statement of which will be sent in due course.’ As...