Slike stranica
PDF
ePub

margin, and subsequently ordered purchase of shares of specific company, and brokers purchased the stock through correspondents to whom stock was delivered, delivery to their agents was in legal effect delivery to the bro

kers, the customer was not entitled to return of money deposited as margin.

5. Brokers 24(1)-Broker has legal title to stocks carried on margin, and customer does not become broker's creditor until after demand and refusal.

Legal title to stocks carried on margin for customer is in the broker in absence of special contract, and customer does not become a creditor of the broker, who has bought stock for him on margin, until after demand and refusal.

6. Brokers

24 (2)-Brokers who bound themselves to deliver shares purchased on customer's demand had right to ask additional margin where money deposited did not sufficiently protect stock.

Where under original contract brokers had right to sell stock whenever sale was deemed necessary for their protection, brokers who purchased shares for customer and bound themselves to deliver the shares on demand had right to ask for additional margin when money deposited did not sufficiently protect stock.

re

7. Brokers 37-Customer suing to cover margins after brokers' sale of stoek on declining market was limited to nominal damages on failure to prove price of stock after customer first learned of sale.

In customer's action to recover money deposited with brokers as margin, recovery against brokers who sold stock on declining market, after customer had failed to furnish all of additional margin required, was limited to nominal damages, where no evidence was offered to prove price at which stock, which was listed in New York Stock Exchange, might have been repurchased after customer first learned of sale.

8. Brokers 37-Accounts of brokers and their correspondents with their customers was immaterial in customer's action to recover deposit, in view of findings.

In action by customer against brokers to recover amount of deposits, in which jury found that brokers had made actual purchase and sale of stock on plaintiff's account, state of accounts of brokers and their correspondents with their customers was immaterial.

him to the defendants. On December 2, 1925,
he requested the defendants, as brokers, to
purchase and sell for his account such stocks
posited with them $500.
as he might order from time to time, and de-
On December 4,
1925, he ordered them to purchase 50 shares
of the stock of a specified company. The evi-
dence would justify the finding that on the
same day, at the defendants' request, these
shares were purchased by their New York
retained in their possession a certificate for
correspondents, who received delivery of and
the shares, having made payment therefor in
full. The defendants had a margin account
with their New York correspondents and were
at all times during the period covered by the
declaration entitled to the immediate delivery
of fifty shares of the company's stock. On
March 3, 1926, in response to a request by the
defendants for $400 additional margin, the
plaintiff paid them $200. He testified that
they then agreed to notify him if more mar-
gin were needed. The defendants' contention
was that no such agreement was made; that
this money was received by them upon an
agreement that they should enter a stop or-
der to sell the shares if the market declined
below a certain point; that on the same day
it did so decline, the shares were sold and
the purchaser thereof received delivery of a
certificate therefor from the defendants' cor-
respondents. On March 5, notice of the sale
reached the plaintiff who went to the defend-
ants' office and demanded repayment of the
money deposited.

submitted, found that the defendants through
The jury, by their answer to a question
their agents made an actual purchase and
actual sale of the stock on the plaintiff's ac-
count. The defendants assented to the order
directing a verdict for the plaintiff for nomi-
nal damages. The plaintiff excepted to so
nominal damages, and contends that he is
much of the order as limited his recovery to
entitled to recover both payments made be-
cause the defendants did not buy, receive and
carry the stock ordered as required by the
law of New York.

[1, 2] The conditions of employment, as stated in his request dated December 2, 1925, did not contemplate the purchases and sales of stock in any particular state. His orders might be executed upon any exchange where

Exceptions from Superior Court, Suffolk they could be filled. The fact that the first

County; Marcus Morton, Judge.

Action by James C. Papadopulos against William E. Bright and others. Verdict was ordered for plaintiff for nominal damages, and plaintiff excepts. Exceptions overruled. W. R. Bigelow, of Boston, for plaintiff. S. E. Gifford, of Boston, for defendants.

SANDERSON, J. The plaintiff seeks to recover on a count for money had and received the amount of two payments made by

order placed, and the only one involved in this action, was executed in New York, and was therefore subject in certain respects to the rules and regulations of the New York Stock Exchange, does not mean that the parties intended that the contract between them was to be governed by the laws of that state relating to stocks bought on margin; it contained no provision that it was to be so governed. Barrell v. Paine, 242 Mass. 415, 425, 136 N. E. 414; Marshall v. James, 252 Mass.

(161 N.E.)

306, 310, 147 N. E. 740. The contract was made in Boston, the payments were made there, and, apparently, it contemplated delivery of stock to the plaintiff in that city if deliveries were required by him. The case falls within the general rule that a contract obligation and its interpretation are governed by the law of the place where it is made.

[3, 4] Not only did the defendants make no agreement to hold the stock bought, but the plaintiff expressly agreed before the stock was purchased that they might loan or pledge any stock thereafter carried on the plaintiff's account, and also that the stock might be used to make deliveries to and for other customers. With this authorization the plaintiff cannot successfully contend that the defendants were bound at all times to have on hand available for delivery to him, either in their possession or pledged to a bank, specific securities of the kind and amount ordered. such an obligation ever existed, it arose out of the agreement on March 3, 1926, and no breach of duty before that date could have been found on the evidence. Delivery of the stock to their agents was in legal effect delivery to the defendants. As the finding that the purchase was actually made was justified by the evidence, the plaintiff is not entitled to a return of the money deposited.

If

[5, 6] Under the law of this commonwealth, apart from special contract, the legal title to stocks carried on margin for a customer is in the broker; and although the customer has a right to pay for and demand delivery thereof at any time, he does not become a creditor of the broker who has bought the stock for him on margin until after demand and refusal, or the equivalent. Hall v. Paine, 224 Mass. 62, 112 N. E. 153, L. R. A. 1917C, 737; Richardson v. Shaw, 209 U. S. 365, 383, 384, 28 S. Ct. 512, 52 L. Ed. 835, 14 Ann. Cas. 981. Under the original contract the defendants had the right to sell the stock whenever such sale was deemed necessary for their protection. They bound themselves to deliver fifty shares on payment and demand by the plaintiff, and they had a right to ask for additional margin when the money deposited did not sufficiently protect the stock.

[7] At all times during the period covered by the declaration this stock was listed and actually traded in on the New York Stock Exchange. No evidence was offered tending to prove the price at which it might have been bought after the plaintiff first learned of the sale. In the absence of such evidence the plaintiff, if entitled to recover, would be limited to nominal damages. Stewart v. Johnson, 252 Mass. 287, 289, 147 N. E. 850; Hall v. Paine, 224 Mass. 62, 65, 66, 112 N. E. 153, L. R. A. 1917C, 737.

[8] The order denying the motion that certain interrogatories be answered was right. Because of the facts found by the jury, the

For

state of the accounts of the defendants and of their correspondents with their customers was immaterial to any issue here involved. Barrell v. Paine, 236 Mass. 157, 163, 164, 128 N. E. 17; Harris v. Friedman, 245 Mass. 479, 482, 139 N. E. 788; Ryan v. Whitney, 257 Mass. 218, 224, 153 N. E. 449. reasons which already sufficiently appear we are of opinion that there was no error in the refusal of the judge to give the rulings requested and none in that part of the charge to which exception was taken. Exceptions overruled.

OLD COLONY TRUST CO. v. GARDNER et al.

Supreme Judicial Court of Massachusetts. Suffolk. June 4, 1928.

1. Trusts 59(3)-Declarations of trust providing for payment of income to grantor and after death to another, with power to revoke trust, were valid and created vested rights in beneficiaries until revoked.

Where B. gave sum of money to trustee with directions to pay income to B. during her life and after her death to hold property and any accumulation of income which should not have been actually paid to her during her life in trust and to pay income to A., and B. reserving power by will to revoke trust, held that declarations of trust were valid and created vested rights in beneficiary until revoked.

2. Trusts 59(4)—Words in residuary clause of will bequeathing legacy to A. did not revoke trusts for benefit of A. declared by testatrix reserving power of revocation.

Words of residuary clause giving, devising, and bequeathing "all rest and residue of property, real and personal over which I have any power of testamentary disposition at time of my decease" of will bequeathing legacy to animal rescue league, held not to revoke trust declared by testatrix for benefit of animal rescue league after her death, where she had reserved right to revoke trust by will, and language of such residuary clause was satisfied by applying it to testatrix's own property.

3. Trusts 59(1)-Until trust is revoked, no new appointment can be made.

Until a trust is revoked, no new appointment or gift can be made.

[blocks in formation]

Case Reserved from Supreme Judicial Court, Suffolk County.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 161 N.E.-51

Suit by the Old Colony Trust Company against Preston H. Gardner and others, for instructions as trustee under declarations of trust. Instructions given.

The will contained no revocation of the declarations of trust unless the words above quoted are a revocation. It did not refer to or undertake to dispose of the specific trust property held by the plaintiff, who brings

Loring, Coolidge, Noble & Boyd, of Boston, this bill in equity for instructions as trustee for petitioner.

Roland Gray, of Boston, for respondent Animal Rescue League of Boston.

Calvin Page Bartlett, of Boston, for respondent Animal Rescue League of Fall Riv

er.

L. Elmer Wood and W. E. Fuller, both of Fall River, for respondents Gardner and others.

SANDERSON, J. In November, 1912, Emma L. Borden gave a sum of money to the Old Colony Trust Company as trustee, with directions to pay the income to her during her life and, after her death, to hold the property and any accumulation of income which should not have been actually paid to her during her life in trust, and to pay the income to the Animal Rescue League of Boston. In this declaration she reserved the power by her last will to revoke the trust. In 1915 she paid a further sum to the same trustee upon a similar trust for the benefit of the Animal Rescue League of Fall River, with a like power of revocation. In August, 1919, she gave to the Rhode Island Hospital Trust Company certain Liberty bonds to hold in accordance with the terms of a declaration of trust similar in its provision to those above mentioned, but for the benefit of the Providence Animal Rescue League. Her will was dated November 20, 1920, and a codicil thereto was dated June 22, 1922; one of the pecuniary legacies was to the Animal Rescue League of Fall River, and there is nothing in the will or circumstances to indicate that this legacy was intended to be in substitution for the gift in trust for its benefit made during her life. Another legacy was to the Rhode Island Hospital Trust Company, to be added to the trust fund above referred to for the benefit of the Providence Animal Rescue League and to be subject to all of the provisions of that trust. Neither the will nor codicil referred to the trust established by her for the Animal Rescue League of Fall River, and no reference was made to the Animal Rescue League of Boston or to any trust for it. The residuary

clause begins with the words:

"I give, devise and bequeath all the rest and residue of the property, real and personal, over which I have any power of testamentary disposition at the time of my decease.

under two of the declarations of trust. See Re Brace, [1891] 2 Ch. 671, 675.

[1-4] The declarations of trust were valid and created vested rights in the beneficiaries until revoked. The animal rescue leagues were not to receive the income of the trust funds until the death of the testatrix. There is no expression in the will and no fact stated in the record to indicate that she desired to deprive them of the benefits which would accrue under the declarations of trust. Her purpose seems to have been to do more for them. If the words in the residuary clause, "all * * * property over which

I have any power of testamentary disposition," are given their natural meaning, they do not revoke the trusts declared by the testatrix. She had no power of testamentary disposition over any of the property held in trust until the trusts were revoked. Courts have held in many cases that a general residuary clause includes any estate of which the testator has a general power of appointment unless a contrary intention is disclosed by the will. But in the case at bar the appointment had already been made by the declaration of trust, and the power reserved was one of revocation only. Until a trust is revoked, no new appointment or gift can be made, and language which would readily indicate an intention to appoint would not indicate an intention to revoke. "A power of revocation is not a power of appointment, but is a power the exercise of which is a condition precedent to the exercise of the power of appointment." In re Thrusby's Settlement, Without intimating [1910] 2 Ch. 181, 186.

whether or not the doctrine stated in Knocker v. Jones, [1920] 1 Ch, 527, would be followed in this jurisdiction, we are of opinion that the case is distinguishable in its facts from the present case. The general disposi tion by the testatrix of her property did not indicate that she intended to exercise a power of revocation, and when all the terms of the will and codicil are considered we cannot find that the trusts were revoked. The lan

guage of the residuary clause is satisfied by applying it to the testatrix's own property.

The plaintiff is instructed that it is its duty as trustee under the declarations of trust to continue to hold the funds upon the trusts declared therein.

Ordered accordingly.

(161 N.E.)

WILSON v. CHECKER TAXI Co.

CARLSON v. SAME.

Supreme Judicial Court of Massachusetts.
Suffolk. May 26, 1928.

1. Courts

80 (1)—Municipal court rule, requiring party whose claim of report is disallowed to file verified petition setting forth claim and facts material thereto, is valid (Rule 40 of Municipal Court of Boston, 1922).

Rule 40 of Municipal Court of Boston (1922), requiring party whose claim of report is disallowed to file verified petition with clerk, setting forth claim in full, and all facts material thereto, with notice to adverse party, held valid. 2. Courts

190(4)-Alleged failure of copy of petition served on adverse party to contain any signature, warranted dismissal of petition to establish reports (Rule 40 of the Municipal Court of Boston, 1922).

On petition for establishment of reports, disallowed by trial judge of municipal court of Boston, alleged absence of any signature on copy of petition and affidavit delivered to adverse party warranted dismissal of petition under Rule 40 of the Municipal Court of Boston (1922).

3. Courts 190(32)-Facts recited in report

sought to be established must be passed on finally by Appellate Division or judges as signed (Rule 40 of the Municipal Court of Boston, 1922; G. L. c. 231, § 108).

Truth of facts recited in report on petition for its establishment must be passed on finally by appellant division or judge or judges assigned therefor, and in no other way, and cannot be determined by Supreme Judicial Court under Rule 40 of the Municipal Court of Boston (1922); G. L. c. 231, § 108.

Appeal from Municipal Court of Boston, Appellate Division.

Actions by Alma Wilson and Hildegarde Carlson against the Checker Taxi Company. After an adverse decision, defendant petitioned for the establishment of reports disallowed by the trial judge. From an order of Appellate Division dismissing the petitions, defendant appeals. Affirmed.

Innes, Cottrell & Myron and John F. Myron, all of Boston, for appellant.

A. F. Converse, of Boston, for appellees.

RUGG, C. J. These are petitions for the establishment of reports disallowed by the trial judge of the municipal court of the city of Boston. Each petition sets out questions of law alleged to have been raised at the trial of the case on its merits and disallowance of the claim for report by the trial judge. The appellate division in each case made an order, "Petition dismissed." From that order the defendant appealed. No report of evidence or of rulings of law is in the record.

[1] It is provided by rule 40 of the Rules of

[blocks in formation]

[2] Each plaintiff filed a motion to dismiss the petition to establish the report on four different grounds. One of these grounds was "because the alleged copy of the petition and affidavit delivered to the plaintiff's attorney dos not contain a copy of any signature thereto." Manifestly, if facts were found to support this ground, the petition for the report could not be established. Thorndike, Petitioner, 244 Mass. 429, 139 N. E. 208. There is nothing in the record to indicate that such facts were not found.

[3] Rule 40 of the Municipal Court in con

function with G. L. c. 231, § 108, means that

the truth of the facts recited in the report as requested by the petition shall be passed upon finally by the appellate division or the judge or judges assigned therefor, and in no other way. It cannot be said that any error of law is disclosed on this record. Cohen v. Berkowitz, 215 Mass. 68, 102 N. E. 124; Sawsik v. Ciborowski, 256 Mass. 583, 152 N. E. 882.

In each case order dismissing petition to establish the truth of the draft report affirmed.

FOX v. COMMONWEALTH. Supreme Judicial Court of Massachusetts. Bristol. May 29, 1928.

1. Conspiracy 37-Defendant could be tried for conspiracy to do things for which he was tried under separate indictments against him as individual, charging liquor law violations.

Defendant could be tried for conspiracy to do things for which he was tried under separate indictments charging him with exposing and keeping for sale intoxicating liquors with intent

to sell the same, since statutory misdemeanors were distinct offenses from crime of conspiracy, which is misdemeanor at common law.

2. Constitutional law 70(3)—Remedy where law permits punishment for conspiracy to commit crimes to exceed penalty for crimes themselves is with Legislature (G. L. c. 139, c. 279, § 5, and c. 138, as amended; St. 1923, c. 370).

Remedy where law, such as G. L. c. 279, § 5, permits punishment for conspiracy to violate statutes to exceed penalty provided for violation of statutes concerning illegal keeping for

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[blocks in formation]

BRALEY, J. The plaintiff was indicted and convicted on three indictments which were tried together. The second indictment charged the defendant in separate counts with exposing and keeping for sale intoxicating liquors with intent to sell the same on January 5 and January 6, 1927. The third indictment charged him with keeping and maintaining a place used by him for the illegal sale and illegal keeping for sale of intoxicating liquors. G. L. c. 138, as amended; G. L. c. 139. The plaintiff was sentenced on each indictment to pay a fine of $100 and to imprisonment for a term of six months. The first indictment in three counts charged that he entered into a conspiracy with certain persons who are named to commit the crimes charged in the second indictment, and also to transport by vehicle intoxicating liquor without having "obtained the permit or other authority required therefor by the laws of the United States and the regulations made thereunder." St. 1923, c. 370. The plaintiff having been found guilty was sentenced on this indictment to pay a fine of $500 and to imprisonment for a term of two years. The merits of these prosecutions have been determined by the judgment on each indictment and the only question presented is whether the judgment in the case for conspiracy should be reversed. Perkins v. Bangs, 206 Mass. 408, 412, 92 N. E. 623. The assignments of error are, that

"It was error to try the petitioner for conspiracy to do the very same things for which he was tried under the indictments against him as an individual." "It was error to sentence the petitioner for conspiracy to do the very same things for which he was sentenced under the indictment against him as an individual." "That

[ocr errors]

the sentence imposed upon the petitioner upon the conspiracy indictment was wholly unauthorized and inconsistent with the law of this Commonwealth."

[1, 2] The statutory misdemeanors were distinct offenses from the crime of conspiracy which in this commonwealth is a misde meanor at common law. Commonwealth v.

Hunt, 4 Metc. 111, 38 Am. Dec. 346; Common

wealth v. O'Brien, 12 Cush. 84; Commonwealth v. Stuart, 207 Mass. 563, 571, 93 N. E. 825. See Commonwealth v. Walker, 108 Mass. 309, 314. Compare Regina v. Boulton, 12 Cox, Cr. Cas. 93. It is contended by the plaintiff, that the sentence for conspiracy tion of the statutes concerning the illegal may exceed the penalty provided for a viola. keeping for sale, or illegal transportation of

intoxicating liquors, or the maintenance of a place where intoxicating liquors are illegally kept. G. L. c. 279, § 5; O'Neil v. Commonwealth, 165 Mass. 446, 447, 43 N. E. 183. But whatever may be the result of treating the crimes described in the record as distinct, the remedy if any adjustment or diminution of the degree of punishment is deemed desirable is with the Legislature. Clune v. United States, 159 U. S. 590, 595, 16 S. Ct. 125 (40 L Ed. 269).

The single justice rightly declined to issue the writ, and the plaintiff's exceptions must be overruled.

So ordered.

PAPPATHANOS v. COAKLEY. Supreme Judicial Court of Massachusetts. Suffolk. May 28, 1928.

1. Equity 377-Though bill for accounting by fiduciary is within general jurisdiction of equity, court has power of its own motion to direct jury issues.

Bill for accounting by fiduciary is within general jurisdiction of equity, and, although no absolute right to a jury trial exists in such cases, court has power even of its own motion to direct jury issues if in its judgment desirable. 2. Equity 377-Trial judge did not abuse discretion in submitting issues to jury in action for accounting by fiduciary.

In action for accounting by fiduciary, trial judge held not to have abused discretion in submitting issues to jury.

3. Evidence 269(2)-Evidence as to state

ment of one since deceased, when handing money to third person for delivery to another, held properly excluded (G. L. c. 233, § 65).

In action for accounting by fiduciary, testimony relative to statement of one since deceased at time of handing money to a third person for delivery to defendant, to effect that money was to be paid to plaintiff, held properly excluded as irrelevant, immaterial, and res inter alios; G. L. c. 233, § 65, relative to declara

« PrethodnaNastavi »