Dorr v. Tremont Nat'l Bank

• Decision Date: 27 February 1880
• Citation: 128 Mass. 349
• Parties: Mary Ann Dorr v. Tremont National Bank
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

128 Mass. 349

Mary Ann Dorr v. Tremont National Bank

Supreme Court of Massachusetts

February 27, 1880

Argued November 21, 1878 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Suffolk. Bill in equity, filed October 26, 1875, alleging that, on June 13, 1870, the plaintiff was the owner of forty-one shares in the capital stock of the defendant corporation, standing in her name on its books, and held a certificate therefor; that prior to that time she had employed Abraham Jackson to collect the dividends on these shares, and had entrusted to him the certificate thereof; that Jackson, without the authority of the plaintiff, fraudulently caused Henshaw & Brother, a firm of stock auctioneers, on or about June 13, 1870, to sell thirty-nine of her shares, and caused the certificate of the forty-one shares to be delivered to Henshaw & Brother, who were permitted to transfer on the defendant's books thirty-nine of the shares to persons to whom they had sold them, and to transfer the other two shares to Jackson; that Henshaw & Brother delivered to the defendant the certificate of forty-one shares, and the defendant issued and delivered new certificates to the purchasers and to Jackson; that the plaintiff did not authorize Jackson to sell her shares of stock, nor Henshaw & Brother to transfer them, and that the defendant carelessly and negligently permitted the transfer to be made; that Jackson received and converted to his own use the two shares and the proceeds of the sale of the thirty-nine shares; that Jackson, after the transfer of the stock, continued to pay to the plaintiff the dividends declared thereon until April 1875; and that the plaintiff was ignorant until that time that the transfer had been made and new certificates issued. The bill then alleged a demand for a new certificate of forty-one shares, and a refusal by the defendant; and concluded with a prayer that the defendant issue a new certificate for forty-one shares, or pay her the value thereof in money; and for further relief.

The answer admitted that the plaintiff had originally owned the shares of stock; but alleged that she had executed a power of attorney in blank to transfer them, and had delivered this power to Jackson, who had given the power with the certificate to Henshaw & Brother; and that the transfer on the books of the defendant had been made without negligence on its part, and upon presentation of this power of attorney and surrender of the old certificate; and set up laches on the part of the plaintiff. Annexed to the answer was a copy of the power of attorney purporting to be signed by "Mary Ann Dorr," and dated January 29, 1870.

On December 5, 1876, Endicott, J., made the following order: "In the above-entitled case, the defendant alleges that the plaintiff signed and executed an instrument, purporting to be a power of attorney, a copy whereof is annexed to the defendant's answer in said cause; and the plaintiff denies that she ever signed or executed said instrument; and it is ordered by the court, on motion of the plaintiff, that an issue be tried by a jury of this court whether Mary Ann Dorr, the plaintiff, signed and executed said instrument."

The case then came on for trial before Lord, J. Before the trial commenced, the defendant claimed the right to open and close, and called the attention of the judge to the issue as framed. The judge stated that he regarded the paper referred to, not as an issue, but as an order directing the framing of an issue; that there was no pleading between the parties, except the bill and answer; that either party might apply to him to have an issue framed, or, if both parties consented, they might go to the jury on the question whether the plaintiff signed and executed the instrument claimed to be a power of attorney, as a question to be answered by the jury; and asked the counsel on both sides whether they desired the framing of any further issues, saying that, if they did, he would either frame or direct an issue to be framed, and, if they did not, he would submit the question raised in the order to the jury, to be answered by them. Both counsel stated that they did not desire any further issues framed, or any change in the pleadings, and consented that the question might be submitted to the jury in the form suggested. The judge then directed the trial to proceed; and ruled that, as there were no pleadings except the bill and answer, the plaintiff was entitled to the opening and close. To this ruling the defendant excepted.

The plaintiff's counsel then opened the case to the jury. The plaintiff testified that she never authorized a transfer of the stock; and then rested her case. The defendant, after cross-examination of the plaintiff, offered evidence of the execution of the power; and the plaintiff, against the defendant's objection, was permitted to put in rebutting evidence.

It appeared that the plaintiff was a widow living in Keene, New Hampshire; and owned forty-one shares in the capital stock of the defendant prior to the transfer of that stock in June 1870, under the power of attorney which she contended was a forgery. There was evidence tending to show that as early as the year 1865 the plaintiff became acquainted with Abraham Jackson, a lawyer of Boston, and caused him to be appointed her trustee under her husband's will; that she had about the year 1868 employed him as her counsel in litigation in New York, which lasted several years; that she had visited at the house where Jackson boarded in Boston, and that he had visited her, at her request, at her house in Keene; that she had been in the habit of constantly consulting him upon her affairs, both as a man of business and as a friend, and of deferring to his judgment; and that her confidence in him, both as her friend and counsel, was unbounded down to a period long after June 1870, in which month she went abroad, leaving her certificates of other property of her own in his hands, with a power of attorney to collect interest on registered United States bonds.

The defendant contended that the relations between the parties rendered it exceedingly probable that she would have yielded to the advice and suggestions of Jackson, and would have given him the disposal of the stock on any ground ostensibly for her benefit by which he might have fraudulently sought to get the disposal of the stock, and made it extremely improbable that he should have resorted to forgery.

The defendant produced about one hundred and sixty letters from the plaintiff to Jackson, written from 1865 to the spring of 1875, and which had been submitted to the examination of the plaintiff's counsel, with notice that they would be offered in evidence; and, having given notice to the plaintiff to produce the letters of Jackson during the same period, offered to put in the whole correspondence as showing the relations between the parties, both before and after the giving of the paper in question. Sixteen of these letters had already been put in evidence, during the cross-examination of the plaintiff, and otherwise. The genuineness of all the letters was conceded, and they were all admitted as standards of the plaintiff's handwriting, and for the purpose of showing that her usual signature was "Mary A. Dorr." The defendant then offered the whole correspondence as showing the relations between the plaintiff and Jackson; and the judge ruled, that the correspondence could not be admitted as a whole for this purpose, but that each letter must be offered and passed upon separately; and to this ruling the defendant excepted.

The defendant then offered in evidence two letters from the plaintiff to Jackson. In the first, dated July 12, 1865, was this language: "There must be something due to you and Mr. Farnsworth. You have both been indefatigable in my cause, which I shall ever remember with gratitude. I shall give myself no anxiety about matters when they are completely in your hands, only to remind you of the taxes of 1862 and 1863, and I don't know how many years before." In the second, dated July 19, 1867, the plaintiff wrote of her thinking of going to Europe; said she wrote to ask him if he thought it advisable, "for your judgment is everything to me;" spoke of renting her house to a certain person, and said, "I did not enter into any agreement, of course, as I wish to consult you in every particular."

The plaintiff's counsel admitted that the relations between the plaintiff and Abraham Jackson were intimate; that she sought his advice on matters of business, and consulted him, and had entire confidence in him; and that she trusted him implicitly in all matters in which she had any interest, to the fullest extent claimed by the defendant as herein stated.

The judge declined to allow the letters to be read for the mere purpose of showing the relation of the parties, because such relation had been fully admitted; but ruled that any letter which was offered would be admitted, if there was anything in it bearing upon the issue on trial.

The jury returned a verdict that the plaintiff did not sign the power of attorney; and the defendant tendered a bill of exceptions, which was allowed by the judge.

The case was afterwards heard before Colt, J., who made a report thereof for the determination of the full court, in which, at the defendant's request, the bill of exceptions was incorporated, in order that its rights might be preserved as if a motion for a new trial had been made for the causes therein stated. The report then set forth the testimony of the cashier of the defendant, to the effect that a member of the firm of Henshaw & Brother, respectable stock auctioneers, presented the old certificate and a power of attorney purporting to be signed by the plaintiff, and ...