Lonergan v. Peck

• Decision Date: 22 January 1884
• Citation: 136 Mass. 361
• Parties: Michael Lonergan v. Frank H. Peck
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

136 Mass. 361

Michael Lonergan v. Frank H. Peck

Supreme Court of Massachusetts

January 22, 1884

Argued November 15, 1883

Suffolk. Contract for money had and received, with a count on an account annexed. The bill of particulars annexed to the first count and the account annexed were the same, and consisted of a large number of items, amounting in the aggregate to the sum of $ 127,949.24. The credit side of the account amounted to $ 115,770, leaving a balance due the plaintiff of $ 12,179.24. Answer: 1. A general denial. 2. Payment. The defendant also filed a declaration in set-off containing nearly two hundred items, and amounting to $ 209,301.66. The case was referred to an auditor, whose report was in substance as follows:

In March, 1879, the plaintiff employed the defendant, who is a stockbroker and banker in Boston, to purchase for him fifteen shares of stock of the Missouri, Kansas, and Texas Railroad Company, and from March 13, 1879, until November 21 of the same year, the plaintiff gave the defendant numerous orders to buy and sell stocks and bonds of various kinds. The business was conducted mostly by written orders given by the plaintiff, and written memoranda of bought and sold notes rendered by the defendant; the defendant also rendered the plaintiff monthly statements of account.

The bonds and certificates of stock were not delivered to the plaintiff, or demanded or paid for by him, but the bonds and stocks were bought, sold, and carried on margins, the plaintiff from time to time making deposits of cash, and the defendant advancing, or procuring to be advanced, money upon the bonds and stocks, on which advances interest was charged.

The plaintiff's declaration correctly alleges the items of cash deposited by him, and also such of the transactions as resulted in a profit to the plaintiff. The defendant's declaration in set-off correctly alleges the defendant's side of the account.

Many of the bonds and stocks could not be purchased in Boston, but could only be bought and sold in New York, and were ordered and sold by the defendant in New York through brokers there.

After the aforesaid transactions closed, on or about November 26 1879, the parties met and adjusted the balance which then appeared to be due the defendant, by the plaintiff giving his promissory note to the defendant for the sum of $ 284, which is declared upon in the defendant's declaration in set-off.

Some of the aforesaid transactions resulted in a loss, and some in a profit, to the plaintiff.

The plaintiff seeks to recover the items of cash deposited by him, and the profit upon such of the transactions as exhibited a profit to him, and claims to repudiate the items of the mutual account which exhibit a loss to him, upon the alleged ground that all the accounts rendered by the defendant of the purchase and sale of the bonds and stock were fictitious, and that the defendant did not buy or sell the bonds and stocks reported by him, and that these facts were unknown to the plaintiff at the time he gave the aforesaid note.

"I find that the defendant did buy and sell the bonds and stocks ordered by the plaintiff, and report that the plaintiff is not entitled to recover any sum, but the defendant is entitled to recover upon his declaration in set-off the amount of the note therein alleged, viz. $ 284, and interest thereon from the date of the writ."

At the trial in the Superior Court, before Colburn, J., the plaintiff put in evidence the auditor's report. The plaintiff also called the defendant as a witness in his behalf.

The defendant contended, and asked the judge to rule, that there was no testimony to control the auditor's report, which ruling the judge declined to give.

The plaintiff contended that the defendant had not made all the purchases and sales on account of the plaintiff which were set forth in his books and in his accounts, as rendered to the plaintiff, though the plaintiff was unable to state which purchases and sales he admitted to have actually been made. But he further contended that he could recover the amount claimed in his declaration, because the defendant, having rendered an account of the purchases and sales as therein set forth, and having testified that they were actually made, the plaintiff was entitled to treat them as actual transactions and the defendant was estopped to deny them, the plaintiff repudiating the other transactions shown on the defendant's accounts, and testified to by him, on which there were losses.

The judge instructed the jury, that, if the defendant made the purchases and sales as stated in his accounts, he was entitled to recover the amount of the note set forth in his declaration in set-off; but that if he made none of such purchases and sales, the...