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136 Mass. 495

Mann v. Bishop

Massachusetts Supreme Judicial Court

Decided February 28, 1884

Massachusetts Supreme Judicial Court · decided 1884-02-28

<p>A. bought by auction at a stock exchange, of which he and B. were members, a number of shares of stock, at a price exceeding fifty dollars, but, in accordance with the custom of the exchange, he did not receive his certificates until the next business day. After his purchase, and before he received his certificates, he sold to B. a less number of shares, at a price exceeding fifty dollars, deliverable in sixty days, buyer’s option. After A. received his certificates, he and B. executed memoranda of purchase and sale. At the expiration of the sixty days, A. tendered to B. certificates of stock of the required amount, which he refused to accept; but it did not appear whether these were the same certificates which A. had when he made the sale to B. Purchases and sales of the same stock were made by A. during the sixty days, but he always had in his possession certificates of stock sufficient in amount to satisfy the contract. Held, that A. could maintain an action against B. for refusing to accept the stock.</p>

Cited by 2 later decisions — most recently January 1917

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1884-02-28

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Colburn, J.

¶1The first objection of the defendant, that the first agreement was void under the Gen. Sts. c. 105, § 6, (Pub. Sts. c. 78, § 6,) because, at the time of making it, the plaintiff was not the owner of any of the stock he had agreed to sell, is not supported by the agreed facts, which show that, on Saturday, October 1, 1881, the plaintiff had purchased by auction at the Mining and Stock Exchange fifteen hundred shares of the stock, before he sold in the same place and way the one thousand shares to the defendant, and that, by the custom of the Exchange, the stock was to be delivered and paid for on the next business day; and that, on Monday, October 3,1881, when the written memoranda of sale and purchase were delivered, the plaintiff had received and held the certificates for the fifteen hundred shares he had purchased on the Saturday before.

¶2The next objection, that the transactions between the plaintiff and the defendant were fictitious and colorable, and a mere cover for illegal gambling upon the fluctuations in the market price of the stock, is answered by the agreed fact, that, during all the time the agreements had to run, the plaintiff owned, and had in his possession, certificates of more shares of the stock than he had agreed to sell the defendant.

¶3 Judgment for the plaintiff on the finding.

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