Lydig v. Braman , 177 Mass. 212 ( 1900 )

Loring, J.

1. The defendant’s first contention is that the evidence did not warrant a finding that the offer to sell contained in the letter of August 9,1888, was ever accepted. The court found that “ at the time of the sale of the bonds, September 28, 1888, and May 10, 1889, it was understood by both parties that the sale was under the terms and conditions oí the offer of August 9, 1888.” The defendant’s letter of September 3, 1890, written nearly a year after ten of the bonds had been taken back, would of itself warrant that finding; there was also other evidence on the point.

2. The defendant’s next contention is that there is a fatal variance between the contract declared upon and the contract or contracts which the plaintiff has proved and upon which the court has based its finding.

The question of variance was not raised by the defendant and is not now open to him. The defendant urges that if that rule of practice is applied in this case he has lost his right to set up the defence of the statute of frauds, and that he has lost this right without any fault on his part; that on the face of the contract declared on the statute of frauds had been complied with, but that in the case of the contract found by the court the statute of frauds was not complied with.

It may be that in such a case the objection of the statute of frauds, if raised in the court below, is open without having been pleaded. Hughes v. Gross, 166 Mass. 61, 66. But neither 'the defence of variance nor the defence of the statute of frauds is open if not raised at the trial.

In the case at bar there would have been nothing in the objection of the statute of frauds had it been raised. A written offer accepted by paroi is a sufficient memorandum to satisfy the statute of frauds. Doherty v. Hill, 144 Mass. 465, 468. In this case the only objection to the defendant’s written offer of August 9, 1888, as a sufficient memorandum of the contract found by the court, is that it is an offer to sell $25,000 of bonds and only $20,000 were bought. But the subsequent letters of the defendant, dated November 2, 1889, and September 3, 1890, taken in connection with the plaintiff’s letters of October 21, 1889, and August 20, 1890, in answer to which they were written, show that the letter of August 9,1888, should be construed to be an offer to let the plaintiff have bonds of the kind in question up to the amount of $25,000, that is to say, $25,000 of the bonds in question, or such part of them as he wanted, and to take back such bonds as he, the defendant, bought at $105 and interest; or at any rate these letters are a sufficient memorandum in writing of a paroi contract for the purchase of $20,000 of bonds on the terms on which the defendant in his letter of August 9 offered to sell $25,000 of bonds.

3. The defendant’s next contention is that even if the proposition of August 9,1888, had been accepted, the plaintiff’s right to have the defendant repurchase the bonds was a right which had to be exercised within a reasonable time, and his demand to take them back “ was not under all the circumstances made within a reasonable time.” The presiding justice ruled that the “ offer to take back bonds 1 at any time,’ means only within a reasonable time,” and refused to rule that the request to take back the bonds which the plaintiff made was not under all the circumstances made within a reasonable time. A majority of the court are of opinion that the plaintiff’s request was made within a reasonable time, and therefore that this request for a ruling was properly refused.

It is not necessary to decide when, by the true construction of the contract, which, on the finding of the court, was made by the parties, the plaintiff’s right to return the bonds had to be exercised; whether the right of return could be exercised at any time so long as the bonds remained unpaid, or whether it was confined to the life of the bonds, or to six years after the right accrued under the rule referred to in' Campbell v. Whoriskey, 170 Mass. 63, or to a reasonable time under all the circumstances. Whichever is the true construction, the demand was seasonably made.

The only demand found by the judge to have been made was made on December 19, 1895. If the principle referred to in Campbell v. Whoriskey is applicable, and therefore under the terms on which the bonds were originally bought the demand should have been made within six years from the date when they were purchased, the defendant is not in a position now to take that objection. The defendant took back ten of the bonds in 1889; in the following year the plaintiff requested him to take back the remaining ten. In answer to that request he not only advised the plaintiff to keep these bonds as being “ the best security ” to be found, but stated in writing in his letter of September 3, 1890, “We will give you cheque for them any time.” He had, according to the plaintiff’s testimony, given the plaintiff the same assurance verbally earlier in the same year. In 1892, 1893, and 1894, the plaintiff again asked to have the bonds taken back, but the court found that the defendant “ persuaded the plaintiff to retain them as the best investment he could make, until December 19, 1895, when he made a formal demand.” This demand was, as matter of law, seasonably made. After inducing the plaintiff, who made a seasonable demand within the six years, not to press that demand, by stating that he would take back the bonds “ at any time,” the defendant cannot claim that a demand made within a reasonable time thereafter was not seasonably made. The demand of December 19, 1895, was made less than six years thereafter, and in the opinion of a majority of the court was "'seasonably made.

In addition to the ruling stated above the presiding justice ruled “ that the agreement of the defendant to take back the bonds contemplated, that the bonds were to be held by the plaintiff as an investment until such time as he could make a more favorable investment of the money paid for them, and until such time the agreement to take them back was binding on the defendant.” If it be assumed in favor of the defendant that this ruling is not a ruling dealing solely with the defendant’s contention that there was no obligation to take back the bonds because only $20,000 in place of $25,000 of bonds were purchased, but is to be construed to be a ruling that the right to have the bonds taken back continued until a more favorable investment could be found, without any qualification, in spite of the judge’s ruling that “ any time ” means only “ within a reasonable time,” the defendant is not prejudiced by it. The demand which was found to have been made was, as matter of law, made within a reasonable time1; and if this ruling is to be so construed, and is wrong, the plaintiff is not injured by it.

4. The defendant’s next contention is that the plaintiff’s cause of action did not accrue within six years of the date of the writ, and is barred by the statute of limitations; this is based on the ground that the plaintiff made a demand for the return of the bonds in his letters of August 20 and 27,1890, and consequently the six years within which an action could be brought on that demand ran out in 1896 ; and further, that the plaintiff by making a new demand could not enlarge his rights in that connection. But there was evidence that the demand contained in Lydig’s letters of August 20 and 27, 1890, was withdrawn by him, and that the demand on which the finding for the plaintiff was based was made December 19, 1895.

5. The defendant’s next contention is that the plaintiff cannot maintain the action, because he did not own the bonds at the time of his demand, and that he could not, in any event, recover damages from the defendant for refusing to take them back, because he had disposed of the bonds while they were at the same price at which he bought them, and consequently suffered no damage. But there was evidence that when the bonds were bought the parties contemplated that they were to be held under the voluntary trust for his mother, and the right to return these bonds so held in trust was acknowledged by the defendant’s letter of September 3, 1890. In such a case the plaintiff is entitled to recover. Drummond v. Crane, 159 Mass. 577, 580. Farr v. Rouillard, 172 Mass. 303, 305.

Exceptions overruled.