Cutter v. Demmon

Wells, J. The evidence would warrant a jury in finding that there was an understanding between the plaintiffs and the defendant that whenever the defendant should sell his own stock he would sell that of the plaintiffs, and that he was authorized to sell for them at the same price as he sold for himself; that this arrangement or understanding was still subsisting at the time of the transactions in question; and that 56 shares of their stock were transferred by the plaintiffs and delivered to the defendant, through Daniel L. Demmon, for the purpose of being sold in pursuance thereof. Or they might find, independently of any such previous agreement or understanding, that the proposition upon wMch the plaintiffs parted with those shares, was that “ certain western parties wanted to buy a majority of the stock ” ana [479] would give $40 only, and take but 56 shares from the plaintiffs ; that the defendant was negotiating a sale to those parties for the plaintiffs and others as well as for himself; and that $40 was named, not as the price of a sale then made to the defendant, or to his brother, but as the highest sum that could be obtained from the parties who were proposing to purchase, through the defendant, their several interests. Upon either of these findings the plaintiffs would be entitled to recover the price for which their stock was in fact sold to those parties; and the instructions to that effect were correct. It is immaterial whether the facts proved were in strict accordance with the allegations of the special count, because in either aspect of the case the general count for money had and received would be supported. The jury were warranted by the evidence in finding that Daniel L. Demmon was the agent of the defendant alone ; and that the defendant sold and took the proceeds of the shares of the plaintiffs. It is immaterial whether the plaintiffs knew that Daniel L. Demmon was acting as agent for the defendant or not; except so far as it might bear upon the question of fact; to wit, whether there was an absolute sale and delivery by the plaintiffs to Daniel L. Demmon, or whether the delivery was merely for the purposes of a sale to the “ western parties.” The admission by the defendant testified to by Tower, although it did not prove the precise facts relied on to support the action, was competent to be considered by the jury in connection with the other testimony, and may have had some bearing to affect his previous testimony in the case. The evidence offered to show for what price other persons sold their shares to Daniel L. Demmon, was incompetent to affect the plaintiffs, and was rightly rejected. Exceptions overruled.