Gifford v. Eastman

Braley, J. The plaintiff on or about November 18,1919, having ordered the defendant, a stockbroker, to purchase five thousand shares of "Oklahoma Oil Stock” at thirteen cents a share, the defendant notified him that the stock had been bought, and rendered a statement for $650 with a commission of $50 for his services, making the total amount $700, which had been paid to the defendant when the order [523] was given. The jury could find on the evidence introduced by the plaintiff that on the defendant’s advice the stock was left in his possession for sale, and that on December 9,1919, the plaintiff notified the defendant to sell it forthwith at thirty-five cents a share, the price at which the stock was then quoted, or to return the stock at once to the plaintiff. The defendant neither sold nor delivered the stock, and the plaintiff sues in contract to recover the money back under a count on an account annexed for money had and received, and in tort under a second count, the allegations of which are, "that on or about November 18, 1919, the defendant was doing business as a stockbroker in said Boston under the name of G. A. Eastman & Co.;” that for the consideration of $700 paid by the plaintiff, "the defendant then agreed to buy for and to deliver to said plaintiff, 5,000 shares of stock of Boston O. K. Oil Co.; that this consideration consisted of 13c per share for said stock and a broker’s commission to said defendant of $50 — ; that the defendant then reported to the plaintiff the purchase of said stock at said price, but failed and neglected to deliver said stock or any part thereof to the plaintiff, and on demand therefor by the plaintiff induced the plaintiff to allow him to retain the said stock for a longer time for future sale, and on or about December 9, 1919, the plaintiff again demanded of the defendant that he then either sell said stock at the then market price of 35c a share or $1,750 —, or deliver the said stock to the plaintiff; that the defendant then neglected and refused to execute said order of sale, and also neglected and refused to deliver said stock or any part thereof to the plaintiff, and thereby the plaintiff was deprived of the opportunity to sell said stock at an advanced price over and above the purchase price thereof, to the damage of the plaintiff in the sum of $1,750 — and interest thereon from said date.” Both counts are alleged to be for one and the same cause of action. The defendant’s evidence tended to show that after the plaintiff’s notice and demand he attempted to sell the stock on the exchange where it was listed at thirty-five cents a share, but on the day when the order was given only two [524] hundred shares were sold at that price, and he was unable to execute the order, and the stock thereafter never sold on the exchange for the price named by the plaintiff. The stock was bought with the plaintiff’s money and when purchased it became the property of the plaintiff to whom the defendant as his agent was bound to make delivery on demand. Cushman v. Snow, 186 Mass. 169. But the plaintiff, instead of demanding the stock, left it in the defendant’s possession for sale, and the defendant ceased to be an. agent to buy, and became an agent to sell forthwith at thirty-five cents, the then quoted market price, or to return the stock to the plaintiff. The defendant’s agency was thus limited to an immediate sale at a certain price, or to a return of the stock without delay. No discretionary power was given, and his authority cannot be enlarged by his own interpretation of it. Mussey v. Beecher, 3 Cush. 511. Stollenwerck v. Thacher, 115 Mass. 224. The orders to sell, or to return, were given December 9, 1919, and the defendant between that date and February 26, 1921, the date of the writ, having made no attempt or offer to return, there was evidence for the jury that he withheld the stock with the intention of appropriating it to himself. The defendant’s sixth and seventh requests were properly refused. Spooner v. Holmes, 102 Mass. 503, 506. Jones v. Cavanaugh, 149 Mass. 124, 126. Boston Supply Co. v. Rubin, 214 Mass. 217. But even if the defendant’s first request that “ Upon all the evidence the plaintiff is not entitled to recover on the count numbered one” should have been given, the plaintiff contends, that the second count is sufficient to support the action, and the verdict. It has been held after a verdict for the plaintiff as in the case at bar, that the verdict will not be upset even if the cause of action is not precisely set forth in the declaration. McLean v. Richardson, 127 Mass. 339. Noyes v. Caldwell, 216 Mass. 525, 527. The defendant did not demur to the second count, and, if he relied on a variance between the evidence and the allegations of that count, he should have raised the question by a request similar to the request under the first count. It cannot be raised for the first time at the argument before us. [525] McLean v. Richardson, 127 Mass. 339. Greenstein v. Chick, 187 Mass. 157. Oulighan v. Butler, 189 Mass. 287. Garfield v. Peerless Motor Car Co. 189 Mass. 395. McCormack v. Butland, 191 Mass. 424. Ryder v. Ellis, 241 Mass. 50. See Ridenour v. H. C. Dexter Chair Co. 209 Mass. 70. The general verdict, being supported by the second count must stand, and judgment may be entered thereon. West v. Platt, 127 Mass. 367,371. Brown v. Woodbury, 183 Mass. 279, 281. Commercial Wharf Corp. v. Boston, 208 Mass. 482, 487. Exceptions overruled.