Downer v. Cripps

• Citation: 49 N.E. 644,170 Mass. 345
• Parties: DOWNER et al. v. CRIPPS.
• Decision Date: 26 February 1898
• Court: United States State Supreme Judicial Court of Massachusetts

170 Mass. 345

49 N.E. 644

DOWNER et al. v. CRIPPS.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1898

Plaintiffs, having in their possession certain stock belonging to defendant, sold it, and applied the proceeds to pay a debt due from him to them for money advanced by them on his behalf. He subsequently repudiated the sale, and obtained a verdict against them for the value of the stock, and they bring this action to recover the amount paid by them for him.

COUNSEL

Harriman & Daggett and G. Phillip Wardner, for appellant.

John Herbert, for appellees.

OPINION

MORTON, J.

For aught that appears, judgment will follow in due course upon the verdict which was recovered by the defendant against the plaintiffs when the order for continuance is vacated or rescinded. We think, therefore, that the verdict must be regarded as establishing conclusively the plaintiffs' right to the stock and that the sale was unwarranted. Burlen v. Shannon, 99 Mass. 200; Hawks v. Truesdell, Id. 557; Franklin v. Greene, 2 Allen, 519. In crediting the proceeds of the sale to the defendant, the plaintiffs acted on the assumption, which was strengthened by conduct on the part of the defendant, that the sale had been rightfully made by them. It turns out on investigation that it was not rightfully made. In what respect the sale was wrongful does not appear. But we think that the defendant, having seen fit to repudiate the sale, and to sue for and recover the value of the stock, cannot now be permitted, in an action by the plaintiffs to recover back money which they paid for him, to allege that the sale was a valid one, or, because the plaintiffs have wrongfully sold his stock, to avoid liability to them for money which they have paid on his account. He gets all that he is entitled to if he gets the value of his stock. He ought not also to get the benefit of what the plaintiffs have paid at his request; there being nothing to show that the parties were engaged in unlawful transactions. Durant v. Burt, 98 Mass. 161; Jones v. Ames, 135 Mass. 431. Judgment affirmed.