Crandell v. White

• Decision Date: 21 June 1895
• Citation: 41 N.E. 204,164 Mass. 54
• Parties: CRANDELL v. WHITE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

164 Mass. 54

41 N.E. 204

CRANDELL v. WHITE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 21, 1895

The suit was against White and Tibbetts as copartners under the name of F.M. White & Co., and also against Wonson. In the superior court, before Bond, J., the court ruled that there was nothing to show that Tibbetts was a partner with White and permitted the case to go to the jury on the fourth count only, as against White and Wonson. The fourth count was to recover $11,800, money had and received to the plaintiff's use. The money which plaintiff sought to recover was paid out as "margins" to defendants in stock transactions. It appeared that the controversy arose out of seven separate transactions for shares in different railroad companies. The court admitted, under objection by defendant, evidence of Wonson, who was defendant's clerk, to the effect that, when plaintiff gave orders to witness, the latter had no intention of actually buying the stocks. The verdict was against the defendant White alone in the sum of $12,858.04, and defendant excepted.

COUNSEL

G.A.O Ernst, for plaintiff.

J.E Hanly and J.F. Libby, for defendant.

OPINION

MORTON J. (after stating the facts).

The plaintiff was allowed to go to the jury only upon the fourth count, which was for money had and received; and the first question is one of pleading. At the conclusion of the evidence, the defendant White asked the court to rule that the count did not come within St.1890, c. 437, and that the plaintiff could not recover. The court refused the ruling, and the defendant duly excepted. The statute on which this action is based provides that "whoever contracts to buy or sell upon credit or upon margin any securities or commodities having at the time of contract no intention to perform the same by the actual receipt or delivery of the securities or commodities, and the payment of the price, or whoever employs another so to buy or sell on his behalf, may sue for and recover in an action of contract," etc. An action for money had and received is an action of contract, and comes literally within the terms of the statute. There was no bill of particulars annexed to the count, and no advantage was taken of that fact by the defendant, either by way of demurrer or by objection that the evidence by which it was sought to sustain the action was not admissible under the count as it stood, as was the case in Rogers v. Inhabitants of Newbury, 105 Mass. 533. If a bill of particulars had been called for, very likely the respects in which the various transactions were illegal would have appeared from it. If not, the objection could have been met by a motion for additional specifications. The defendant's request was in effect for a ruling that an action for money had and received could not be maintained under the statute. A majority of the court think that it was rightly refused, and that it came too late, and that the objection should have been taken by way of demurrer.

2. The defendant asked the...