Greene v. Corey

• Decision Date: 03 January 1912
• Citation: 210 Mass. 536,97 N.E. 70
• Parties: GREENE v. COREY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

210 Mass. 536

97 N.E. 70

GREENE v. COREY et al.

Supreme Judicial Court of Massachusetts, Middlesex.

January 3, 1912

COUNSEL

George Hoague, for plaintiff.

Whipple Sears & Ogden, Hugh W. Ogden, and Henry H. Bond, for defendants.

OPINION

SHELDON J.

The plaintiff claimed that he had put certain amounts of money into the hands of the defendants upon their promise to buy and sell for him upon a margin such property and securities as he should from time to time direct, his money to be a margin for the protection of the defendants; but that the defendants, though pretending to have made these purchases and sales, and to have applied properly the plaintiff's money as margins thereon, had not done so, and were bound to account to him for the amount of his payments. While some other matters were nominally at any rate in issue, the real dispute between the parties was whether or not the defendants had made the purchases and sales which they were directed to make, and whether or not the plaintiff was bound by the terms of several releases which he had given to the defendants at the end of some successive months. There was no question that the plaintiff had made to the defendants the payments which he claimed, or that these were to be used by the defendants as margins upon purchases and sales which, though to be made upon margins, were yet to be real transactions.

The case had been sent to an auditor and his reports were put in evidence, except that the judge excluded two paragraphs of the first report, which stated certain rulings of law that had been asked for by the defendants and the rulings which he made thereon. In our opinion these paragraphs, not being findings of fact and not being evidence for the jury, were not strictly to be regarded as parts of the report. The reading of them to the jury would have created a danger that the jury might have confused these rulings with those made by the judge, which alone were to govern them. The discretion of the judge was wisely exercised in excluding them. Beach & Clarridge Co. v. American Steam Gauge & Valve Manuf Co., 208 Mass. 121, 124, 94 N.E. 457; Fisher v. Doe, 204 Mass. 34, 40, 90 N.E. 592; Briggs v. Gilman, 127 Mass. 530, 531.

So too the defendant's request numbered twenty A could not be given. Any mistake that had been made by the auditor on questions of law was to be corrected by proper instructions to the jury. Tobin v. Kells, 207 Mass. 304, 309, 310, 93 N.E. 596; Hunneman v. Phelps, 199 Mass. 15, 85 N.E. 169; Picard v. Beers, 195 Mass. 419, 81 N.E. 246. For another reason also this request was properly refused. The defendant's contention was that the auditor had erred in fuling that the burden was upon the defendants to show that they had used the money which the plaintiff had put into their hands in the manner authorized by their agreement with him,--that is, that they had executed or caused to be executed his orders for purchases and sales. They claim that this was clearly erroneous. We consider that it was correct. That was the effect of the decision in Fiske v. Doucette, 206 Mass. 275, 282, 92 N.E. 455, and it was the point decided in Lonergan v. Peck, 136 Mass. 361.

The plaintiff's testimony as to his knowledge about the defendants' having purchased the stocks which he had ordered and his intention that the defendants should make such purchases was competent. It tended to show the materiality of the false representations which, as he claimed, had been made to him and had induced him to sign the releases on which the defendants relied. The mere order of evidence was in the discretion of the judge and is not to be reviewed by us. The plaintiff's testimony that he received no money when he signed these releases was competent for like reasons.

We see no ground in which the amount of the commission and profit received by the defendants from the plaintiff was material to the issues on trial. It was properly excluded.

The fourteenth interrogatory in the deposition of Leavitt was rightly excluded. Enough appeared to show that the answer to this question was merely a matter of opinion, an inference drawn correctly or incorrectly by the witness from facts which were themselves in evidence. The defendants' counsel in their brief have confused this with the eleventh interrogatory, which appears to have gone in without objection. The fifteenth, sixteenth and seventeenth cross-interrogatories and the answers thereto were competent upon the issue whether the purchases and sales in question had been actually made and whether the stocks bought were ready and available to be delivered to the plaintiff through the defendants if he had paid the balances due from him and called for the certificates.

It was for the judge to decide whether Fitzgerald was qualified to testify to the law of New York. The witness testified that he had made a special study of the subject. We cannot say that the action of the judge was clearly wrong. Teele v. Boston, 165 Mass. 88, 89, 42 N.E. 506; Howland v. Westport, 172 Mass. 373, 52 N.E. 522.

The seventh and eighth requests for instructions could not have been given as asked for. The facts therein stated might all have been true, and yet the New York brokers might not have had under their control certificates to a sufficient amount which might rightly have been delivered to a particular customer. If these requests contained a correct and sufficient statement of the law, a broker who had undertaken to purchase and claimed that he had purchased on a margin a hundred shares of a particular...