Chandler v. Prince
| Citation | 105 N.E. 1076,217 Mass. 451 |
| Parties | CHANDLER v. PRINCE. |
| Decision Date | 20 May 1914 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Moulton Loring & Loring, of Boston (Victor J. Loring, William Reed Bigelow, and John P. Sylvia, Jr., all of Boston, of counsel), for plaintiff.
J. L Thorndike and R. G. Dodge, both of Boston, for defendant.
This is an action to recover from the defendant, a stockbroker, the value of securities and money lost by the plaintiff's testatrix through the kind of stock gambling prohibited by R L. c. 99.
The defendant contends that a verdict should have been directed in his favor on the ground that the plaintiff's case rested wholly upon the prima facie evidence that there was an intention on the part of the customer that there should be no actual sales and that there was reasonable cause on the part of the broker to believe that no such intention existed, established by R. L. c. 99, § 6, from the fact that orders were given to sell stocks which the customer did not own, and that this prima facie case was met by the auditor's report in his favor, which of itself is prima facie evidence by R. L. c. 165, §§ 55, 56, and thus that, as the prima facie evidence of the statute was neutralized by the prima facie evidence of the auditor's report the burden of proof resting upon the plaintiff was not sustained.
This contention is not sound. Prima facie evidence means evidence 'which standing alone and unexplained' maintains the proposition and warrants 'the conclusion to support which it is introduced.' Emmons v. Westfield Bank, 97 Mass. 230, 243; Wilder v. Cowles, 100 Mass. 487, 488; Carroll fact is proved and there is no other evidence 86 N.E. 793. Many statutes have been enacted from time to time establishing certain facts as prima facie evidence. The effect of these statutes is that, where such fact if proved and there is no other evidence and no foundation for contrary inferences, the conclusion it supports must follow. Wakefield v. American Surety Co., 209 Mass. 171, 176, 95 N.E. 350. But the law does not put all prima facie evidence on the same footing, nor declare that it is all of equal probative force. The effect of prima facie evidence, when not met or controlled, is established by the law, but its weight is not fixed when it is met or controlled. Then it is to be analyzed and treated according to its worth. When two pieces of evidence conflict, each declared by law to be of primafacie force, then the case is thrown open and is to be considered at large upon all the evidence. The tribunal charged with the ascertainment of the facts is bound to determine the inherent evidential value of each piece of evidence and weigh it with the inferences and probabilities arising from all the circumstances, and thus reach a decision. It becomes a question to be decided according to the sound judgment of the jury, which evidence in fact is the more credible. To illustrate: By R. L. c. 29, § 20, it is provided that the record of a city or town clerk as to birth shall be prima facie evidence of the fact while by chapter 106, § 25, a certificate of age of a minor, signed and sworn to by the minor and his parent, was made prima facie evidence. These two instruments, one under each of these statutes and each made prima facie evidence, well might conflict as to the same fact. It is not difficult to determine which of these two instances of prima facie evidence commonly would have higher probative value. The uncertainty of the latter has been emphasized by the repeal of that statutory provision and the substitution of the certificate of the city or town clerk wherever available. St. 1909, c. 514, §§ 59 and 145. Conflicting evidence, prima facie in character, is analogous to conflicting presumptions. It cannot be said as matter of law that one kind is stronger or weaker or equal to another kind. It is a question of fact. The evidence is to be considered as a whole and the truth ascertained as in other cases of contradictory evidence. Turner v. Williams, 202 Mass. 500, 505, 89 N.E. 110, 24 L. R. A. (N. S.) 1199, 132 Am. St. Rep. 511.
The facts in the case at bar, however, did not support this contention of the defendant. There was oral testimony at the trial directly contradicting the statement in the auditor's report that all purchases and sales of securities charged in the account were made 'upon written orders signed either by Mrs. Colburn or her agent.' This testimony may have been believed and found to be material, and, if so, the force of the auditor's report and of his general conclusion was shaken. In other words, there was material evidence outside of that made prima facie evidence. Manifestly then the whole question was for the jury. Lonergan v. Peck, 136 Mass. 361, 365; Wyman v. Wicher, 179 Mass. 276, 60 N.E. 612; Cohasset v. Moors, 204 Mass. 173, 90 N.E. 978. It follows that the defendant's requests for instructions numbered 1 and 7 were denied rightly.
The defendant has saved his right to object to the rule of damages laid down in the charge. He seasonably presented requests setting forth his view of the law in this regard, which were denied against his exception. At the close of the part of the charge respecting liability, attention was called specifically to one of these requests and then the court suggested that as the parties had agreed upon the amount of damages, he would not lay down the rule of damages. Whereupon counsel for the defendant, referring again to his request, said: The judge again said he would not give the defendant's requests. Whereupon his counsel announced the amount of damages agreed upon, if the plaintiff was entitled to recover anything. This was no waiver of the defendant's contention as to the correct rule of damages. In substance it meant that after the court had denied the defendant's requests, and exception had been saved, he agreed upon the amount, if anything, which must be recovered upon the only rule of damages left open under the ruling of the court.
The unusual circumstances of this case required the application of the rule of damages contended for by the defendant. The transaction between the plaintiff's testatrix and the defendant began by the transfer to the latter of the qualified title to certain securities held by others upon valid pledges made by her to secure just demands against her. She did not and could not deliver the securities themselves. When the defendant paid the amount for which these securities were pledged, he succeeded to a valid lien for a like amount in his own interest. There was nothing illegal in that transaction, whatever were the later dealings between the parties. Subsequently she gave to the defendant orders from time to time to sell these securities, and the proceeds were used toward discharging this lien. The defendant was entitled to enforce his lien by legal process, but the same result could be and was accomplished by agreement between the parties. When these sales were made by the defendant upon order of the plaintiff's testatrix, her qualified title was extinguished and transferred to the balance of proceeds left after satisfying the pledge. Wiggin v. Heywood, 118 Mass. 514, 516. This would have been the situation if there had been no gambling transactions between the parties. But their relations touching the valid pledge was...
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