Corey v. Woodin

Sheldon, J. The only question raised by these exceptions is whether a verdict should have been ordered for the defendant as matter of law. His contention is that, even if the jury found that the contract on which the plaintiff relied was proved, and that he had agreed to pay her, in the contingency which has occurred, $1,250 for the stock in question, yet she could not maintain her action upon his promise because, by signing the paper of June 1, she had elected to keep the stock as her own property. But, apart from the question whether she was induced to sign this new agreement by the fraud of the defendant, the majority of the court are of opinion that her execution of it was not necessarily a waiver of her rights under the previous oral agreement. Her right of action upon that must be taken, after the finding of the jury, to have become vested. But the certificate of stock was still in her name, and something must be done to transfer it to the defendant. Her giving him express authority to dispose of, that is, to sell and transfer, the stock which stood in her name was not of itself a waiver of her right to contend that, as between him and her, the stock should be treated as his. And it is significant that it was expressly stipulated that he should sell it for enough to net her the exact amount to which she was entitled under the old oral contract. Nor does the agreement to give the defendant an option on the stock for four months import as matter of law more than a recognition of the fact that the legal title was in her, that his authority to sell should not prevent him from taking the stock, and that she would not bring suit for four months. That time had more than 470 expired when she brought her writ. Such a new agreement, though reduced to writing, does not necessarily as matter of law show that a former oral agreement under which rights already have vested is rescinded or merged in the new bargain. Edgar v. Joseph Breck & Sons Corp. 172 Mass. 581, 588, and cases there cited. Accordingly the defendant’s request was rightly refused. It may be said that the case was not submitted to the jury upon the ground upon which we rest our decision. That is true; but the defendant is not concerned with this. He declined to go to the jury at all, choosing to stand wholly upon his contention that he was entitled to have a verdict ordered in his favor. He must fail if there was any ground upon which the jury could find against him. Exceptions overruled.