Whiton v. Batchelder & Lincoln Corp.

• Decision Date: 24 May 1901
• Citation: 179 Mass. 169,60 N.E. 483
• Parties: WHITON v. BATCHELDER & LINCOLN CORP.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

179 Mass. 169

60 N.E. 483

WHITON v. BATCHELDER & LINCOLN CORP.

Supreme Judicial Court of Massachusetts, Suffolk.

May 24, 1901

COUNSEL

Jesse C. Ivy, for appellant.

Charles K. Cobb and William D. Wittmore, Jr., for appellee.

OPINION

BARKER J.

The demurrer alleges that the 'declaration, and the matters therein contained, in manner and form as the same are set forth, are not sufficient in law for the plaintiff to have his action against the defendant.' The plaintiff contends that it brings nothing before the court. But it points out that the declaration does not state a legal cause of action which, where the question is one of substance, and not of the form, of allegation, is one of the causes of demurrer mentioned in Pub. St. c. 167, § 12, cl. 2. It brings that question before the court. The words of the clause cited 'substantially in accordance with the rules contained in this chapter,' need not be used if the party demurring relies upon no question of form. Proctor v. Stone, 1 Allen, 193, 196; Chenery v. Inhabitants of Holden, 16 Gray, 125.

The substance of the declaration is that the plaintiff was a stockholder, and that the defendant was bound to him in the terms of the agreement, by which, as the declaration puts it the corporation promised him that upon request it would cause his share to be appraised by its board of directors in accordance with the agreement; that, being desirous of selling his shares, he applied to the defendant to cause the same to be appraised in accordance with the agreement, and that the defendant, disregarding its promise, refused to appraise the shares, or to cause them to be appraised, in accordance with the agreement, by reason of which refusal he has lost the difference between the real value of the shares and a lower price, at which, for lack of the appraisal, the shares were sold at public auction at the stock exchange. Omitting the words relating to executors, etc., the agreement, so far as is now material, is that, should the person to whom the certificate of stock is issued desire to sell any of his shares, he shall cause them to be appraised by the directors, 'which it shall be their duty to do upon request,' and shall thereupon offer the same to the directors for the use of the company at such appraised value; and that upon payment or tender to him thereof, and of the dividends due, if the directors choose to take the shares for the use of the...