Graham v. Houghton

Lathrop, J. The only question presented by this bill of exceptions is whether there was any evidence which would warrant the jury in finding for the plaintiff on the first count of the declaration. [386] The defendant contends that the paper writing of March 25, 1889, shows that the defendant did not agree to purchase the stock, but to act as the plaintiff’s agent in disposing of it. Assuming this to be so, there was abundant evidence to show that this arrangement was subsequently abandoned by mutual assent. The defendant next contends, that the statement in the bill of exceptions, that “in May or June, 1889, defendant stated to plaintiff that he had decided to take the stock himself, and would have the money in a few days, to which the plaintiff made no objection,” shows at most a proposition made by him unaccepted by her, and also shows no price fixed for the stock. The jury were warranted in finding, from the conduct of the parties at the time and subsequently, that the plaintiff did assent to the proposition, and that the defendant so understood it. Hayes v. Kelley, 116 Mass. 300. No question can arise as to the price. When the defendant originally sold the shares of stock to the plaintiff, he agreed to buy it back at a fixed price. By the paper of March 25, the same price was named. When the defendant subsequently agreed to take the stock himself, and to pay the money in a few days, it would be a fair inference that he agreed to pay the only price which had been named between them. His subsequent promises to pay “ the money ” also show that the price was well understood. Exceptions overruled.