Wilson v. Davison

• Decision Date: 30 June 1922
• Parties: WILSON v. DAVISON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

242 Mass. 237

136 N.E. 354

WILSON

v.DAVISON.

Supreme Judicial Court of Massachusetts, Suffolk.

June 30, 1922.

Exceptions from Superior Court, Suffolk County; John A. Aiken, Judge.

Action by Wilfred R. Wilson against Freeman I. Davison to recover $1,000 paid for mining stock, to be delivered at a later date. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

Plaintiff testified that his negotiations for the stock were had in part with one Davy, and that following the giving of a check for the price he received a letter, signed by Davy, ‘representing Davison & Company,’ and an instrument, dated June 18, 1919, acknowledging receipt of the $1,000 and stating that the stock was to be delivered 10 days prior to listing for public trading, or at the latest by November 1, 1919, and signed ‘Davison Company, per Freeman I. Davison.’ The evidence showed that defendant was president of the Davison Company. Defendant excepted to the admission of evidence concerning the conversations with Davy, to the denial of a directed verdict on the grounds that from all the evidence plaintiff was not entitled to recover, and that there was a variance, in that the proof showed that the money was paid to the Davison Company, to the court's characterization of the instrument dated June 18th as a receipt, and to the portion of the charge stating that the jury had a right to go behind the papers and determine what the actual facts were.

Charles A. Castle and Fred L. Norton, both of Boston, for plaintiff.

Austin M. Pinkham, of Boston, for defendant.

CROSBY, J.

This is an action to recover $1,000 paid by the plaintiff on June 19, 1919, for certain mining stock which was to be delivered on November 1, 1919. The declaration is in five counts; the first and second are in contract; the others, in tort, were waived.

There was evidence that the defendant was engaged in the business of a broker and had in his employ one Davy; that Davy, undertaking to act for the defendant, on or about June 10, 1919, in a conversation with the plaintiff respecting the Liverpool Silver Mines Company located in Montana told him that the defendant was offering for sale stock in the company at 40 cents a share; that it would be listed on the Boston curb at 70 cents by September and that those who purchased the stock would make a net profit upon its being listed of 30 cents a share. There was also evidence that after this interview the plaintiff saw the defendant and referred to his conversation with Davy, and the defendant said to him, ‘It is a big thing; it is a good thing.’ On June 19 the plaintiff saw Davy and agreed to purchase 2,500 shares and paid therefor $1,000 by check. The check was originally written payable to the defendant's order, but on Davy requesting that it be made payable to ‘Davison & Company,’ it was altered and made payable to ‘F. I. Davison Company’ and delivered to Davy. It was deposited in a bank and collected. Afterwards, the plaintiff received by mail a paper signed ‘Davison Company, per Freeman I. Davison,’ acknowledging receipt of $1,000 in payment of the stock and stating that it would be delivered ‘ten days prior to listing for public trading or at the latest by November 1, 1919.’

The plaintiff testified that up to the time he made the check he had not known or heard of the Davison Company or the F. I. Davison Company; that he never received the stock; that at different times in September and October he asked both the defendant and Davy for its delivery, and on December 12, 1919, wrote to the defendant stating in substance that the stock had not been delivered as agreed not later than November 1, 1919, and demanded the return of the $1,000 paid therefor. The defendant did not return the amount paid, but on December 17, wrote to the plaintiff that the delay was due to an error in the issuance of the certificate. On December 18 the certificate was sent to the plaintiff by registered letter but was not accepted by him. It is the contention of the plaintiff that he dealt with the defendant individually through his agent Davy, that he was entitled to rescind the contract because the certificate was not delivered as agreed on November 1, that he did so rescind and is entitled to recover back the amount paid.

At the close of the evidence the defendant moved that the court order a verdict in his favor for the following reasons:

‘(1) On all the evidence the plaintiff is not entitled to recover.

‘(2) There is a variance between the allegations and the proof, the proof showing that the money was paid to the corporation, Davison Company.’

The court declined to allow the motion and the defendant excepted.

If the jury were warranted in finding that the agreement for the purchase and sale of the stock was made by the plaintiff with the defendant and not with Davison Company, the verdict for the plaintiff was warranted.

The circumstance that the check was made payable to the order of P. I. Davison Company is not conclusive if, as the jury could have found, it was so drawn at the request of the defendant's agent; it would not show that the contract was not made with the plaintiff if, on all the evidence, it appeared that the contract in fact was made with the defendant; especially as the jury could have found that the plaintiff had no knowledge of the existence of Davison Company. Besides the check was not made payable to that company but to F. I. Davison Company.

If as the jury could have found the stock was purchased from the defendant individually and that the check was given in...