Snow v. Alley

• Citation: 156 Mass. 193,30 N.E. 691
• Parties: SNOW v. ALLEY.
• Decision Date: 04 April 1892
• Court: United States State Supreme Judicial Court of Massachusetts

156 Mass. 193
30 N.E. 691

SNOW
v.
ALLEY.

Supreme Judicial Court of Massachusetts, Barnstable.

April 4, 1892.

Report from superior court, Barnstable county.

Action by Chester Snow against John B. Alley for breach of an alleged contract, whereby defendant promised, in consideration of 150 bonds of the Postal Telegraph Company, 75 of which were to be returned upon a certain contingency, to purchase 32 like bonds, and loan a sum of money on other like bonds. There was a judgment for defendant, and plaintiff excepts. Exceptions sustained.

H.P. Harriman, [156 Mass. 193]E.C. Bumpus, and R.F. Simes, for plaintiff.

A.A. Ranney and F. Ranney, for defendant.

HOLMES, J.

This is an action for the breach of an alleged contract to buy of the plaintiff 32 Postal Telegraph Company bonds for half their par value, viz., for $16,000, and to lend the plaintiff $20,000 on other like bonds, in consideration of the plaintiff's agreeing to give the defendant 75 like bonds.

The defenses are a general denial, and that the plaintiff has precluded himself from this action by electing a different remedy.

The case was tried before a jury, and at the conclusion of the evidence the judge ruled that the defense had been maintained, and directed a verdict for the defendant.

[156 Mass. 194]The ground on which the defendant goes is this: At the time of the transaction between the plaintiff and the defendant, whatever it was, the plaintiff delivered to the defendant 150 bonds. According to the plaintiff's version, only 75 of these were to come from him ultimately, and the defendant agreed, in the event which happened, to return 75 of them. The plaintiff sued the defendant in trover for 150 bonds in the case which was before this court in 144 Mass. 546, 11 N.E.Rep. 764, and 151 Mass. 14, 23 N.E.Rep. 576.

In that suit he took the ground that the defendant induced him to part with the bonds by making promises which he intended not to keep, and that this entitled him to repudiate the bargain, and to demand back the 150 bonds. But, if the plaintiff failed on this ground, still, if the jury believed his testimony as to what the bargain was, he could recover on the same count for the 75 bonds which belonged to him, and which he was entitled to demand and had demanded, as he said.

That either the 150 bonds or the 75 bonds could be recovered for under the same count is an accidental result of the rules of pleading and practice in trover. But, although the same count answered for a recovery either way, it is...