Downer v. Cripps

Morton, J. For aught that appears, judgment will follow in due course upon the verdict which was recovered by the defendant against the plaintiffs when the order for continuance is vacated or rescinded. We think, therefore, that the verdict must be regarded as establishing conclusively the plaintiffs’ right to the stock, and that the sale was unwarranted. Burlen v. Shannon, 99 Mass. 200. Hawks v. Truesdell, 99 Mass. 557. Franklin v. Greene, 2 Allen, 519. In crediting the proceeds of the sale to the defendant, the plaintiffs acted on the assumption, which was strengthened by conduct on the part of the defendant, that the sale had been rightfully made by them. It turns out on investigation that it was not rightfully made. In what respect the sale was wrongful does not appear. But we think that the defendant, having seen fit to repudiate the sale and to sue for and recover the value of the stock, cannot now be permitted, in an action by the plaintiffs to recover back money which they paid for him, to allege that the sale was a valid one, or, because the plaintiffs have wrongfully sold his stock, to avoid liability to them for money which they have paid on his account. He gets all that he is entitled to if he gets the value of his stock. He ought not also to get the benefit of what the plaintiffs have paid at his request, there being nothing to show that the parties were engaged in unlawful transactions. Durant v. Burt, 98 Mass. 161. Jones v. Ames, 135 Mass. 431. Judgment affirmed.