Obery v. Lander

Holmes, C. J. This is an action upon a contract for the purchase of certain stock by the defendant from the plaintiff. The plaintiff covenanted to sell to the defendant on demand “ the capital stock of the Mercer Cell Company I now own, consisting of two hundred shares,” and at once to indorse and deliver the same to one Bisbee, to be held by him in escrow and to be delivered to the defendant, on payment of $1,000 within fifteen-days, forty shares; on payment of $2,000 within thirty days thereafter, eighty shares; and on payment of $2,000 within thirty days after the second payment, the remainder of the [130] shares. It was stipulated that “ this option expires ... if not accepted within fifteen days.” The stock was indorsed and delivered to Bisbee at once. At the trial the defendant excepted to a refusal to rule that there was no evidence that the defendant had agreed to purchase the shares. The defendant also excepted to the exclusion of evidence of the market value of the stock. As to evidence of the defendant’s acceptance of the offer contained in the plaintiff’s covenant, it would seem to be enough that the defendant paid the first thousand dollars and received the stock for it. The defendant argues, to be sure, that this was not an acceptance of the whole offer, on the ground that the offer was of three several sales, and also that the requirement that the option should be accepted within fifteen days shows that acceptance and the first payment were different things. We think it so plain that there was but one offer of the whole lot of two hundred shares, although to be paid for and delivered in parcels, that we shall spend no argument upon the matter. Barrie v. Earle, 143 Mass. 1. We think it equally plain that the requirement as to acceptance is merely an emphasizing of the necessity for action within the time named, and that it does not imply that the defendant could make a payment and receive stock under the offer without accepting it. If, however, it were necessary to go further, the defendant’s statement to the plaintiff’s attorney “ that he would not be forced to pay for the certificotes; that he would pay for them when he got good and ready,” implied an admission that he had bought the stock, or at least might be found to imply it. It is unnecessary to con- • sider the acts of the defendant’s agent, which also showed an agreement to take the stock. The other exception goes on the footing that this is an action for damages for breach of an executory contract to purchase. We understand the declaration to be not for damages but for the price. But, whatever may be the true construction, the judge having intimated that he took it so and the plaintiff’s counsel having assented to the interpretation, we must assume that the case went to the jury on that footing, and no wrong was done to the defendant if on the facts such an action could be maintained. Such an action could be maintained because [131] the plaintiff had done all that there was to be done by him under his contract, and had put the stock into an adverse hand. All that the defendant had to do to get a delivery of the stock was to pay as he had agreed. Frazier v. Simmons, 139 Mass. 531. The decisions in this Commonwealth have gone very far in support of an action even for goods sold and delivered. Nichols v. Morse, 100 Mass. 523. Rodman v. Guilford, 112 Mass. 405, 407. McLean v. Richardson, 127 Mass. 339, 345. Exceptions overruled.