Ballou v. Willey

• Citation: 62 N.E. 1064,180 Mass. 562
• Parties: BALLOU v. WILLEY.
• Decision Date: 28 February 1902
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

180 Mass. 562

62 N.E. 1064

BALLOU v. WILLEY.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1902

The amended declaration in the action was as follows:

'First Count. And the plaintiff says that on or about the various dates mentioned in the account hereto annexed, and marked 'A,' she (the plaintiff) contracted to buy and sell upon credit and margin securities and commodities of the kind named and described in section 1 of chapter 437 of the Acts of the Commonwealth of Massachusetts of 1890; that at the time of each of said contracts no intention existed on her part to perform the same by the actual receipt or delivery of the securities and commodities, and payment of the price; that the defendant, being the other party to said contracts, had reasonable cause to believe that no intention to actually perform said contracts did exist that on account of said contracts the plaintiff paid to the defendant the various sums of money set opposite their respective dates in the account hereto annexed, wherefore the defendant owes to the plaintiff the amount of said sums, to wit, $18,695, and interest on the separate items in accordance with the account hereto annexed, making in all $18,929.37.

'Second Count. And the plaintiff says that on or about the various dates mentioned in the account hereto annexed, and marked 'A,' she (the plaintiff) employed the defendant to buy and sell on her behalf, upon credit and margin securities and commodities of the kind named and described in section 1 of chapter 437 of the Acts of this Commonwealth of 1890; that at the time of said employment the plaintiff had no intention to perform said contracts, or that they should be performed, by the actual receipt or delivery of the securities or commodities, and payment of the price, and that the defendant, the person so employed, had reasonable cause to believe that no intention to actually perform said contracts did exist; that, on account of said contracts and said employment, the plaintiff paid the defendant the various sums of money set opposite their respective dates in the account hereto annexed, wherefore the defendant owes the plaintiff the amount of said sums, to wit, $18,695, and interest on the separate items in accordance with the account hereto annexed, making in all $18,929.37.

'Third Count. And the plaintiff says that the defendant owes her the sum of $18,929.37, in accordance with the account hereto annexed, and marked 'A."

COUNSEL

Whipple, Sears & Ogden, for plaintiff.

Harvey H. Pratt, for defendant.

OPINION

BARKER J.

1. The demurrer to the declaration was rithtly overruled. The counts which cite the statute, and that on an account annexed, each sound in contract, and therefore may be joined. Pub. St. c. 167, § 2, cl. 5. The first and second counts follow the statute, and state the substantive facts necessary to a recovery under St. 1890, c. 437, § 2. To set out the circumstances from which those facts might be deduced was unnecessary, and would have been bad pleading. Woodbury v. Jones, 3 Gray, 261; Willard v. Williams, 7 Gray, 184. See Inhabitants of Taunton v. Caswell, 4 Pick. 275; Coolidge v. Learned, 8 Pick. 504, 511. The other grounds taken in the demurrer have not been argued.

2. The court was not obliged to find or to rule that the plaintiff and the defendant were partners. The auditor's report does not purport to state in detail all the evidence introduced at the hearing before him. Although the circumstances that the...