Levin v. Hornblower

• Decision Date: 18 September 1937
• Citation: 298 Mass. 340,10 N.E.2d 504
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: NATHAN LEVIN v. HENRY HORNBLOWER & others.

298 Mass. 340

10 N.E.2d 504

NATHAN LEVIN v. HENRY HORNBLOWER & others.

Supreme Judicial Court of Massachusetts, Suffolk.

September 18, 1937

March 2, 1936.

Present: FIELD DONAHUE, LUMMUS, QUA, JJ.

Sale, Repudiation Of Securities. Tender. Waiver. Election.

A purchaser of shares of stock sold in violation of G.L. (Ter. Ed.) c. 110A who, after he had made the tender of the stock necessary as a prerequisite to recovery of the purchase price and the tender had been refused, sold the stock, could be found to have abandoned and waived his right to such recovery.

CONTRACT OR TORT. Writ in the Superior Court dated July 11, 1934. The action was heard without a jury by Weed, J., who found for the defendants. All parties alleged exceptions.

L. Withington, (E.

C. Park with him,) for the defendants.

A. M. Ginzberg, for the plaintiff.

FIELD, J. This case, of the same general nature as McGray v. Hornblower ante, 334, and brought against the same defendants, was tried with that case as therein described. The trial judge made specific findings applicable to the present case and found generally for the defendants. The case comes before us on a combined bill of exceptions of the plaintiff and of the defendants.

The trial judge found warrantably the following facts, among others: In 1929 the plaintiff bought from the defendants a Bankers Trust Company receipt representing fifteen shares each of the Chase National Bank and of the Chase Securities Corporation. Later in the year he bought from that corporation a similar receipt for forty-five shares each of the bank and of the corporation. "On or about October 3, 1932, the Bankers Trust receipts having been surrendered, the plaintiff received a so called `unit' or `duplex' certificate for 60 shares of the Bank on one side of the sheet and a certificate on the reverse side for 60 shares of the Corporation. On December 5, 1933, the plaintiff sold the 15 shares first sold him by the defendants . . . . At sometime in June, 1934 he learned that a question had arisen about a failure to comply with the Sale of Securities Act prior to his purchases in 1929 above described. He purchased in the market `unit' or `duplex' certificates for 5 and 10 shares, respectively, each of the Bank and of the Corporation (now `Amerex')." On July 5, 1934, the plaintiff "tendered the certificates for the 15 shares each of the Bank and of the Corporation that he had just purchased in June 1934, duly endorsed in blank, together with $250 to cover the dividends and rights that he had received or would have received had he held the original shares from the time of purchase to the time of tender. Since the tender he has sold the 15 shares. The plaintiff has held through this period and still holds the 45 shares of the Bank and of the Corporation purchased in 1929. But it appears that he has tendered the 45 shares to the Corporation with a view to rescinding the purchase and sale of the 45 shares."

The judge found "that the sale of said fifteen shares of the stock of the Corporation by the defendants to the plaintiff on September 4, 1929 was in violation of Section 4 of the...