Bellows v. McKenzie

DeCourcy, J. As stated in the bill of exceptions, “the question presented . . . relates entirely to the measure of damages,” the defendants contending that the proper measure of damages is the difference between the market value of the shares and the contract price, and that the trial judge erred in awarding to the plaintiffs the balance due upon the contract. The evidence on which the decision was based is not before us. From certain findings of fact filed by the judge, it appears that J. C. Robertson, the defendants’ intestate, on March 1, 1906, gave to the plaintiffs a written order for a “trustee’s receipt for five hundred shares of the Utah-Bingham Mining Company at $4.00 per share;” paying $200 on account, and agreeing to pay the balance in six and twelve months. Subsequently the plaintiffs procured the receipt or certificate in the name of J. C. Robertson as owner which was to be delivered to Robertson on payment of the balance [604] of the purchase money. Presumably the judge found that this arrangement was made with the consent of Robertson. Among other things the memorandum states: “I find from the course of the correspondence between the parties that the defendants’ intestate expressed his willingness to pay for the same, but also stated his inability to raise the necessary money and asked for an extension of time.” The finding in favor of the plaintiffs for the balance of the purchase price must have been based upon the judge’s conviction that the evidence of the entire transaction between the parties, of which the written order was only a portion, established a case of an executed sale, and not merely an executory agreement to purchase. In the absence of the evidence clearly we cannot say that such conclusion was not warranted. On the contrary, it would appear from the record that the parties intended the title of the trustee’s certificate to pass, and that the plaintiffs had done all they had to do in order to divest themselves of the property in the stock and to effect a complete transfer thereof to Robertson. The trustee’s certificate was appropriated to the defendants’ intestate, and he could obtain actual possession at any time upon payment of the balance of the price. Here could be found at least a completed bargain and sale, with transfer of title; and upon the buyer’s refusal to pay, the seller was entitled to recover the purchase price, notwithstanding his retention of a lien therefor. Thompson v. Alger, 12 Met. 428. Frazier v. Simmons, 139 Mass. 531. Mitchell v. Le Clair, 165 Mass. 308. Obery v. Lander, 179 Mass. 125. In view of the express stipulation in the exceptions that they relate entirely to the measure of damages, and the uncontradicted statement in the plaintiffs’ brief that the first and second requests for rulings were waived by the counsel for the defendants, we do not consider that any question of pleading is now before us. It may be said, however, that it sufficiently appears by the declaration that the plaintiffs relied upon a completed sale and not upon an executory contract to sell. Exceptions overruled.