Tilton v. Whittemore

• Decision Date: 19 May 1909
• Citation: 202 Mass. 39,88 N.E. 329
• Parties: TILTON v. WHITTEMORE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

202 Mass. 39

88 N.E. 329

TILTON v. WHITTEMORE et al.

Supreme Judicial Court of Massachusetts, Plymouth.

May 19, 1909

COUNSEL

Nutter &amp King, for appellant.

Brandeis Dunbar & Nutter (Edw. F. McClennen and Austin T. Wright, of counsel), for appellees.

OPINION

MORTON J.

This is an action of contract to recover from the defendants unpaid dividends which the plaintiff alleges are due him from them by virtue of a written contract dated November 24, 1900, by which the plaintiff agrees to purchase of the defendants $1,000 worth of Sedalia Copper Company stock at $10 per share on certain conditions, namely: That the defendants agree to repurchase the stock on November 24, 1901, for the sum of $1,000, if the plaintiff so desires, and that they guarantee to pay him 'dividends amounting to not less than 8 per cent. per annum on the above $1,000 worth of stock.' We have stated the conditions in what seems to us their natural order and not in the order in which they occur in the contract. The contract was duly executed by the parties and the plaintiff paid for and received the stock as stipulated. Dividends were paid for 14 months, till January 24, 1902, at the rate of 8 per cent. per annum, but none have been paid since, and the plaintiff seeks to recover in this action dividends at the rate of $80 a year from that date to November 23, 1906 the expiration, we assume, of the last dividend period before the date of the writ, which was February 2, 1907. The plaintiff did not avail himself of the defendants' agreement to repurchase. It is possible that the dividends that were paid were paid by the defendants' procurement with an eye to that contingency, the last one having been paid only two months after the year expired; but there is nothing to warrant such a finding, if material. The case was heard by the court without a jury on agreed facts with power to draw inferences. The court ordered judgment for the defendants and the plaintiff appealed.

The case is not free from difficulty, but we think that the ruling was right. The guaranty admits of several constructions: Either that the dividends were to be paid as long as the plaintiff held the stock, or during the life of the corporation, or for a reasonable time, or for the year to which the obligation to repurchase was limited. If the guaranty be construed as running for a reasonable time, then it would be difficult to say as matter of law that the finding which...