Frazier v. Simmons

C. Allen, J. There may be a bargain and sale of goods, sufficient to transfer the title, and thus to support an action for goods bai’gained and sold, without any such delivery as will 536 amount to a transfer of possession. The former is quite consistent with the vendor’s retaining a lien for the price, and thus retaining possession till the price is paid. Morse v. Sherman, 106 Mass. 430, 432. Haskins v. Warren, 115 Mass. 514, 533. Safford v. McDonough, 120 Mass. 290. Arnold v. Delano, 4 Cush. 33, 38. Simmons v. Swift, 5 B. & C. 857. 2 Kent Com. 492. In the present case, it may be assumed that the title to the shares did not pass at once, upon the completion of the contract of October 25,1881. The words “we have purchased” do not necessarily import a present transfer of property to the purchaser, if it appears that the intention of the parties was otherwise. Sherwin v. Mudge, 127 Mass. 547. The words “ payable and deliverable, buyer’s option, sixty days,” go to show that the parties did not intend a present transfer. But according to the rules of the Mining and Stock Exchange, to which both parties belonged, on all contracts for stocks or bonds sold on time, either party might require deposits to be made at any time during the existence of the contract; and when such deposit should be called for after the next session of the board, on buyer contracts where the cash price, at the time a deposit is called, is below the contract price, the buyer shall deposit an amount equal to the difference between the contract price and the cash price at the time the deposit is called, and ten per cent of said cash price additional; and the seller shall deposit ten pér cent of the cash price at the time the said deposit is called. And the seller shall always have the privilege of depositing the whole amount of the stock sold in lieu of the cash, in which case the margins shall be paid to him by the buyer, and the amount credited on the contract. It does not expressly appear, in the present case, that on October 27 the cash price of the shares in question was below the contract price; but this is fairly to be inferred from the call that was made, and the defendants’ acquiescence in it, and indeed nothing to the contrary has been suggested by the defendants at the argument. On that day, the plaintiff called for a margin of twenty per cent of the contract price; and on October 28, in pursuance of the above rules, he deposited with the American Loan and Trust Company the certificates of the shares, with powers of attorney for their transfer executed in blank; 537 and on the same day the defendants paid to the plaintiff twenty per cent of the contract price. This was a part payment of the price. The trust company thereafter held the shares, and the plaintiff could not withdraw them without the defendants’ concurrence. Nothing more was to be done by the plaintiff to effect a complete delivery of them, except to indorse and surrender the receipt taken from the trust company. The specific shares were appropriated to the defendants, the price was ascertained, the defendants were entitled to obtain possession of them at any time upon payment of the balance of the price, the receipt was merely in the nature of a vendor’s lien for the price, and the whole transaction was assented to by the defendants; and we are of opinion that this amounted to a transfer of the title, subject simply to the right of the plaintiff to require the trust company to obtain the price before surrendering the possession of the certificates. The plaintiff was bound to indorse the receipt, as soon as payment should be made. The deposit of the stock in lieu of the cash, and the payment of the margin by the defendants to the plaintiff, to be credited on the contract, under the twenty-fifth rule, show a change in the condition of the parties after that transaction, and amount to a transfer of title, and entitle the plaintiff, after the expiration of the sixty days, to maintain an action for the price. See also Turner v. Langdon, 112 Mass. 265; Middlesex Co. v. Osgood, 4 Gray, 447. The defendants further contend that it was necessary for the plaintiff, in order to make out a prima facie case, to show that he was authorized by the owner to sell the shares at the time when the contract was made. But this objection is covered by the statement in the report, that, at the time of the execution of the paper, the plaintiff had in his possession certificates for three hundred shares of the stock, which he was duly authorized by his principal to sell for him. This takes the case out of the statute. Gen. Sts. c. 105, § 6. Judgment on the verdict.