Matthews v. Fuller

• Decision Date: 11 December 1877
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Edward S. Matthews v. Charles E. Fuller & another

123 Mass. 446

Edward S. Matthews v. Charles E. Fuller & another

Supreme Court of Massachusetts

December 11, 1877

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Suffolk. Contract for money had and received. The declaration also contained counts in tort, alleged to be for the same cause of action. Writ dated November 2, 1874. Trial in this court, before Soule, J., who allowed a bill of exceptions in substance as follows:

It appeared in evidence that, at some time prior to June, 1871, the plaintiff, a surgeon in the United States navy, left ten bonds of the Union Pacific Railroad in the keeping of the defendants, who were bankers and brokers in Boston; that on June 21, 1871, he sent the following letter, signed by him, to the defendants: "Please hand over to Mrs. Matthews the $ 10,000 in Union Pacific bonds which you now hold belonging to me. Remove the coupons due next month, and after selling the gold send Mrs. M. a draft for $ 100. The remainder please hold on deposit; and as I shall increase it from time to time, I shall request you to invest it judiciously. Mrs. Matthews will call at your office for the bonds. If convenient, please hand her a draft, due July 1st, for $ 100. I shall send you gold drafts from Brazil, which I request you will invest;" that on June 23, 1871, the plaintiff sailed from Portsmouth, New Hampshire, on the United States steamer Ticonderoga, for a cruise on the east coast of South America.

It further appeared in evidence that, on June 21, the plaintiff's wife came to Boston and informed the defendants that her husband had instructed her to get his bonds from them, and hire a safe in the Union Safety Deposit vaults, in Boston, and place the bonds in it, and exhibited to the defendants a written order from her husband to them, to deliver the bonds to her; that the defendants then advised her, and she concluded that it would be safer, to leave the bonds in their keeping, which she did; and that the defendants then wrote the following letter to the plaintiff: "Boston, June 23, 1871. Dear sir: We told your wife today that if the U. P. bonds were our own we would not hold them all, but would sell half of them, and put the balance into something else, although the condition of the road is better at this time than at any time since the bonds were issued; and she remarked that she might want to use them, or part of them, in Rio, which would be a very difficult thing to do, as we presume that they are not known in that market. We also suggested that in case of loss, by theft or otherwise, there could be nothing recovered; whereas, if you had registered bonds of some Kind, no loss of the bonds would affect your title to them, or the power to draw the interest regularly. We wish that you had taken Iowas (7% gold); they are now 95, and few for sale; we knew that they would advance when the road was completed."

To this letter the plaintiff replied from Rio de Janeiro on August 25, 1871, as follows: "I have the pleasure to acknowledge the receipt of your kind letter, which reached me yesterday. You are probably aware that the bonds which are in your keeping constitute my entire wealth; they are all I have, and naturally I desire to have them in safe keeping, and hence my acceptance of your kind offer of your box in the Safety Deposit vault. You recommend Central Iowas, and advise me to sell my Pacifics and buy them. If the Pacifics go up to 90, -- accrued interest to be added, -- I think it well to sell them. I have lost the run of the market, and therefore I must leave the sale of these bonds to your judgment. I am most anxious to get my money in registered bonds, so that, if lost, I can recover. Therefore, if Pacifics are as high as at any past period, -- say 90, accrued interest to be added, -- or as high as it is probable they will go for a long period, you may sell all of them, and invest the amount in the best paying and surest bonds that you know of. As these bonds are all that I possess, I am naturally always anxious about them, for the reason that if lost or stolen, I could recover nothing. I don't recollect what Iowas were when you advised me to buy. You will therefore please to invest the results of the sale of the Pacifics in the Iowas (seven per cent. gold), or any sure road. Mrs. M. writes me you offered to take the same interest in the sale and purchase of bonds for me as if you had a personal interest in them, and therefore I will leave the sale of the Pacifics to your good sense, and superior knowledge of the stock market. Is there not a probability of the Pacifics going up to par when the company withdraw their ten per cents? Could you not get me Iowas in exchange for Pacifics, even? I want registered bonds, of which I will have no trouble in drawing the interest. Of course I desire to sell all, as the same objection exists to possessing a thousand as exist to having ten thousand. From time to time, I will send you gold drafts on England, which you will please place to my credit, and invest in safe, liberal paying bonds. I have sent Mrs. Matthews an order for one hundred dollars, which you will please honor. I shall feel under many obligations if you will kindly make such sale and purchases of bonds as your good sense dictates."

The defendant, who wrote the above letter of June 23, testified, on being shown the letter, in cross-examination, that this letter was written with a view to getting the plaintiff to invest in Iowas; that of course he intended to have him understand that Iowas could be registered; but he added that the letter spoke for itself.

It appeared that the Iowas mentioned in the defendants' letter of June 23 were the first-mortgage bonds of the Central Iowa Railroad; that the defendants had them for sale for said railroad; and that, prior to June 23, the defendants had recommended them to the plaintiff as an investment. It further appeared that in July, 1871, the defendant began selling for the Central Iowa Railroad its second-mortgage bonds; and that on October 3, 1871, the plaintiff's wife called on them, and they showed her the above letter of the plaintiff's of August 25, 1871, and they wrote, and she signed and gave them, the following order: "October 3, 1871. Please sell five thousand dollars U. P. first mortgage, at eighty-eight, or better, and buy five thousand Iowa second. Mary E. Matthews;" that the defendants thereupon sold five of the plaintiff's bonds, and invested the proceeds in five of the second-mortgage bonds of the Iowa Central, which they had for sale. The defendants also received the following letter from the plaintiff, enclosing the drafts therein mentioned: "Rio de Janeiro, Brazil, September 4, 1871. Herewith I enclose to you a draft on London for # 101 10s. 6d., in your favor, at sixty days; also one on London at sight, for # 50 5s. 2d. in your favor. Please invest the results of the sale of these bills in such stock as may seem most desirable. If you consider the Iowas good, -- sure beyond doubt, -- put the money in them. If it is agreeable to you, I will be glad to have you invest for me such money as I may, from time to time, be able to send to you."

It also appeared that the following correspondence ensued between the defendants and the plaintiff's wife: "Providence, R. I., October 10, 1871. C. E. Fuller & Co.: How are the bonds; have you sold them, and what do you think of the Union Pacifics? It seems to me that the fall in bonds, now since the fire in Chicago, would make a good time to buy Iowas. I hope you sold the Pacifics before the news came. I had a letter from the doctor a day or two since, and he says he wants to get registered bonds, but I suppose they are very high. What kind of registered bonds are there to be had, and how much are they? Mary E. Matthews."

"Boston October 11, 1871. Mrs. Mary E. Matthews: We have received your favor of the tenth, with enclosures as stated. We have exchanged five thousand dollars of your Union first mortgage 6's for Iowa Centrals. We have suffered no loss from the Chicago disaster, but think it would have the effect rather of enhancing the value of the Iowas. The market on Union Pacific 6's has declined steadily, closing last night in New York at 82 7/8 and interest bid. The Iowa Central bonds can be registered by forwarding the bonds to the company's agents, they only giving you a receipt, interest being collected by a power of attorney. We think it would be better for you, if you wish to make any change, to hire a safe in the Safe Deposit Company, for twenty dollars a year. We are sorry you did not give us an order to sell the other 5M. Union Pacific 6's, but we could not sell without an order, although we thought advisable so to do. They may rally, and if you wish us to exchange the other five for Iowas, without loss to you, we think it advisable to do so, and will, on your written order to that effect. G. E. Fuller & Co."

"Providence R. I., October 13, 1871. C. E. Fuller & Co. Yours of the eleventh is just received. I am glad you did not suffer by the loss of property in the Chicago fire. It is queer that it should affect the Union Pacific 6's so much. I do not want to sell as low as 82 7/8, for I think some of the bonds cost that, and I want to make something on them; but I will trust to your good judgment, and give you an order to sell the remaining five thousand whenever you have a good opportunity, and change them for Iowas or other bonds. If you think best you might buy some Iowas with the one thousand dollars in your hands; of course use your judgment about it. If you know of any other good investment it may be well to have some money in...