Roney v. Mazzara

• Decision Date: 13 October 1947
• Docket Number: No. 7.,7.
• Citation: 29 N.W.2d 259,319 Mich. 103
• Parties: RONEY et al. v. MAZZARA.
• Court: Michigan Supreme Court

319 Mich. 103

29 N.W.2d 259

RONEY et al.

v.MAZZARA.

No. 7.

Supreme Court of Michigan.

Oct. 13, 1947.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; Theodore J. Richter, judge.

Action by William C. Roney and others, doing business as William C. Roney & Company, a limited partnership, against James Mazzara to recover an amount paid by plaintiffs for corporation stock in excess of the price for which they sold defendant's stock in the same corporation as ordered by defendant, who failed to deliver stock to plaintiffs. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Before the Entire Bench.

Anthony Maiullo, of Detroit (Joseph A. Maiullo, of Detroit, of counsel), for defendant-appellant.

Clifford M. Toohy, of Detroit, for plaintiffs-appellees.

CARR, Chief Justice.

For several years past the plaintiffs in this case have been carrying on a general stock brokerage business in the city of Detroit, as copartners, under the name of Wm. C. Roney & Co. On December 1, 1944, defendant Mazzara gave an order to plaintiffs through their customers' man, George Coker, to sell 1,000 shares of Aviation Corporation stock at 5 1/8. The order, which was verbally given, was executed at the designated price on December 20, 1944, the stock being sold on the New York stock exchange in two blocks of 500 shares each. Confirmations advising defendant of the sales were sent to him and were actually received, according to his testimony, December 24th following. Defendant did not deliver the stock and plaintiffs, during the period beginning January 12, 1945, and ending February 3rd following, purchased 1,000 shares of Aviation Corporation stock on the market at prices ranging from 5 1/2 to 6 1/8 per share. The total cost of stock so purchased in fulfillment of the sale made on December 20, 1944, was $1,127.62 in excess of the price for which defendant's stock was sold. This suit was brought by plaintiffs to recover the amount stated.

Defendant claimed in his answer to plaintiffs' declaration that the order for the sale of the stock was cancelled by him by verbal notice to Mr. Coker given on December 15, 1944. In their reply to the answer plaintiffs denied the cancellation. In support of the allegations in his pleading defendant testified on the trial that he actually cancelled the order in the manner claimed, his testimony being squarely contradicted in this regard by that of Mr. Coker. The trial court, after listening to the proofs and arguments of the parties, determined the issue in favor of the plaintiffs, finding specifically that defendant had not cancelled the order, as claimed by him. The trial judge further indicated in his opinion that, even had such cancellation been made, defendant's conduct subsequent to December 20, 1944, was such as to ratify the sale. Judgment was accordingly entered for plaintiffs in the amount claimed, and defendant has appealed.

Disposition of the case rests on the determination of facts, many of which are in dispute. The trial judge had the advantage of hearing and seeing the witnesses and of noting their demeanor when testifying. He was, in consequence, in a better position than is this court to weigh the testimony offered by the parties. We have repeatedly held that in cases tried without a jury the trial judge may give to the testimony of each witness such weight as he thinks is proper. In cases of this character this court does not reverse unless the judgment rendered is against the clear preponderance of the evidence. Marquette Lumber Co. v. Burke, 308 Mich. 698, 14 N.W.2d 544;Allen v. Kroger Grocery & Baking Co., 310 Mich. 134, 16 N.W.2d 691;Stevenson v. Brotherhoods Mut. Benefit, 312 Mich. 81, 19 N.W.2d 494;Marion v. Savin, 315 Mich. 448, 24 N.W.2d 100.

It appears from the record that in December, 1944, defendant placed with plaintiffs, through Mr. Coker, an order for the purchase of 200 shares of New York Central stock, the order being executed on or about December 27, at 22 1/8. Following receipt of the confirmation of this purchase defendant made payment for the stock, and on January 6, 1945, went to plaintiffs' office for the purpose of obtaining the certificates. It is conceded that on this occasion some conversation took place with reference to the delivery by defendant of the Aviation Corporation stock. Plaintiff Roy W. Neil testified that he inquired concerning the matter, first directing his question to Mr. Coker, and that Mr. Coker, in the presence of defendant, stated the latter would deliverthe stock on the following Monday morning, January 8th, and that it would be all right to release the New York Central stock to him. Mr. Neil further testified that he then looked toward defendant and asked him if that was correct and was assured by defendant that the stock in question would be delivered on the following Monday moring. Thereupon the certificates of the New York Central stock were delivered to defendant. Mr. Neil's testimony is corroborated by that of plaintiffs' cashier, Norman Rudolph, and also by the testimony of Mr. Coker. Defendant, however, claimed that when the question was asked as to the delivery of the Aviation Corporation stock he made no answer and Mr. Coker replied in substance as testified by Mr. Neil, without denial or comment of any kind on defendant's part. It is apparently defendant's claim that his attitude on this occasion was prompted by statements made to him by Mr. Coker. It will be noted, however, that his testimony is materially at variance with that of the three witnesses for plaintiffs. In any event it is obvious that one of the plaintiff copartners and the cashier for the firm were definitely advised, either by defendant or in his behalf, that the stock would be delivered to plaintiffs later. If defendant's claims as to what was said and done are correct the record fails to show any satisfactory explanation for his attitude. If he did not intend at that time to deliver the stock to plaintiffs he could scarcely have failed to realize that he was misleading Mr. Neil and Mr. Rudolph.

Defendant further claimed that when he received the confirmations covering the sale of his Aviation Corporation stock he discussed the matter with Mr. Coker and that the latter told him that he (Coker) had forgotten to enter the cancellation of the order to sell. This testimony is disputed by that of Mr. Coker, who...