Pizer v. Hunt

• Decision Date: 19 September 1925
• Citation: 253 Mass. 321,148 N.E. 801
• Parties: PIZER v. HUNT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

253 Mass. 321

148 N.E. 801

PIZER

v.HUNT et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 19, 1925.

Appeal from Superior Court, Suffolk County; Henry T. Lummus, Judge.

Action of contract by A. Pizer, as alleged assignee of one P. E. Gash, against William Hunt and others, to recover credit balance and certain securities carried on margin account. After rescript, following decision for plaintiff, defendants filed motion in arrest of judgment. From an order overruling the motion, defendants appeal. Exceptions overruled. Order affirmed.P. H. Kelley, of Boston, for appellants.

M. M. Horblit and H. A. Eyges, both of Boston, for appellee.

RUGG, C. J.

This is an action of contract. It was referred to an auditor and subsequently was tried before a judge of the superior court without a jury. The finding was for the plaintiff. The case then came here on exceptions by the defendants and the exceptions were overruled. 250 Mass. 498, 146 N. E. 7. After rescript following that decision the defendants filed a motion in arrest of judgment. That was heard by a judge of the superior court, who refused certain requests for instructions and denied the motion. The case is here at present on points raised respecting this judicial action.

A motion in arrest of judgment can be sustained only for substantial errors of law apparent on the record. Sawyer v. Boston, 144 Mass. 470, 472, 11 N. E. 711;Commonwealth v. Brown, 150 Mass. 334, 341, 23 N. E. 98, and cases there collected; Boston Bar Association v. Casey, 227 Mass. 46, 49, 116 N. E. 541. ‘Such motions are not favored.’ Baker v. Warner, 231 U. S. 588, 592, 34 S. Ct. 175, 177,58 L. Ed. 384.

The defendants have undertaken to embody in this record requests for rulings presented by the plaintiff to the trial judge at the time of the trial on the merits. They were not made a part of the earlier bill of exceptions. Those are no part of the record and cannot be considered. Given v. Johnson, 213 Mass. 251, 100 N. E. 369;Norton v. Musterole Co., Inc., 235 Mass. 587, 589, 127 N. E. 431;Everett-Morgan Co. v. Boyajian Pharmacy, 244 Mass. 460, 461, 139 N. E. 170.

The grounds alleged in the present motion are in substance (1) that the finding of the judge in favor of the plaintiff was not based upon the allegations of the declaration but upon a different ground, and (2) that the trial judge allowed the plaintiff to file subsequent to the hearing before him an amended declaration setting up specifically the ground on which the finding was based. There are subsidiary averments in the motion which need not here be recited at length. All of them have been considered in reaching our conclusion.

It is to be observed that both these grounds and all grounds argued relate to matters which occurred prior to the time when the case was here before and concern the conduct of the judge at the original hearing and his subsequent allowance of the amendment to the declaration.

The declaration on which the case went to trial on the merits contained two counts. The first count alleged that the plaintiff was the assignee of a margin account carried by one P. E. Gash with the defendants, who are stockbrokers, and that the defendants had refused to deliver to the plaintiff the amount due him on such account upon demand, whereby the defendants owed the plaintiff a cash balance, the value of certain shares of stock and of a bond of the plaintiff held by the defendants, and interest. This count set out by specific enumeration the stocks included in the account thus assigned. They are the stocks carried on January 31, 1920, in account No. 1, between Gash and the defendants, which is hereafter described. The second count was on an account annexed. It alleged indebtedness due to the plaintiff on four items: (1) A cash balance, (2) the value of stock held by the defendants belonging to the plaintiff, (3) the value of a bond so held, and (4) interest. The answer was simply a general denial and set up no affirmative defense.

The evidence showed that Gash had at the time of his assignment to the plaintiff two margin accounts with the defendants, one called account No. 1, on which there was a considerable credit balance due from the defendants, and another account called account No. 2, on which there was a small credit balance due from the defendants. On account No. 2, which remained in the name of Gash, there came to be soon afterwards a considerable debit balance due to the defendants. There was evidence tending to show, and the finding of the auditor and that of the judge clearly established, that the assignment from Gash to the plaintiff was of the margin account No. 1, on which there was the considerable credit balance due from the defendants, that this assignment was accepted by the defendants, that the other margin account, No. 2, was retained by Gash in his own name and was so recognized and treated by the defendants. The terms of the assignment from Gash to the plaintiff by specification of stocks unequivocally identified the account assigned as the one claimed by the plaintiff and found to be his by the trial judge. The stocks enumerated in the first count of the plaintiff's declaration were those enumerated in the assignment and carried in account No. 1 on January 31, 1920.

The controversy between the parties arose because on account No. 1 there was a considerable credit balance due from the defendants at the time the plaintiff made demand on them to turn over to him what was due on it, while on account No. 2 there was a considerable debit balance due to the defendants. The defendants refused to pay to the plaintiff the amount due from them on account No. 1, which stood in his name, until they were paid the amount due to them as debit balance on account No. 2 which stood in the name of Gash. They asserted a lien on account No. 1 to make good the debt due to them on account No. 2.

The record of that trial which was embodied in the first bill of exceptions shows that the main issues tried were (1) whether the assignment from Gash to the plaintiff was genuine or fictitious, (2) whether that assignment was recognized and accepted by the defendants and the plaintiff thereafter treated by them as its owner, (3) whether contemporaneously with the presentation of that assignment to the defendants and its acceptance by them, or at any time, it was agreed between the parties that whatever credit balance was or might be due on that account, No. 1, should be subject to a lien in favor of the defendants to cover whatever debit balance might be due them on the account, No. 2, remaining in the name of Gash, and (4) whether the two accounts were after the assignment of January 31, 1920, separate and distinct accounts, one in the name and for the benefit of and belonging to the plaintiff alone, and the other in the name and for the benefit of and belonging to Gash alone, with all subsidiary inquiries and issues connected with these chief questions.

During the trial of the case on the merits, the plaintiff, when one of the witnesses called by the defendants was on the stand, introduced in evidence without objection the ‘Customer's Registration Card’ signed by the plaintiff on January 31, 1920. This card was directed to the defendants and was kept by them. It was potent evidence of a contract directly and solely between the defendants and the plaintiff. The defendants cross-examined the plaintiff concerning that card. It was in the case as evidence without exception. The card was entitled to its full probative effect on the rights of the parties. The defendants, by limiting their examination or cross—examination concerning that card could not narrow its probative value or effect as evidence. There was much evidence in the case, aside from this card, of a contract between the plaintiff and the defendants as the exclusive parties springing into existence on January 31, 1920, and relating to account No. 1 alone. That ‘Customer's Registration Card’ was referred to in the amendment to the first count of the declaration allowed by the judge after the trial, wherein was set out categorically a contract between the plaintiff and the defendants made as to account No. 1. It is manifest from an examination of the record that that subject was gone into at that trial in considerabledetail. It is further manifest that the relations between the plaintiff, the defendants and Gash touching these two accounts and the customer's registration card signed by the plaintiff were subjected to full inquiry at that trial. The defendants have not suggested in their argument the existence of any evidence bearing upon these questions then available which they did not present fully at the trial on the merits. They have urged strenuously that their constitutional rights have been invaded; but they have not indicated any facts on which to rest that alleged invasion. Painstaking examination of the record fails to disclose to us any rational possibility of harm to the defendants.

The case as set out in the amendment to the first count of the declaration, filed after the finding, was fully and substantially tried on its merits at the hearing before the trial judge. The findings of facts completely cover the issues raised thereby. The report of the auditor indicates that it was also tried before him. The findings of the judge show that, in reaching his conclusion that a new contract was made between the plaintiff and the defendants on January 31, 1920, dissociated from the earlier or continuing contract between Gash and the defendants, he relied upon all the evidence in the case and not exclusively upon the card signed by the plaintiff.

It was said in the opinion, when the case was here before, that:

‘The evidence * * * warranted the finding that the defendants on January 31, 1920, made a new contract for a valuable consideration with the plaintiff, and that thereafter the rights and obligations of the plaintiff and defendants stood...