Zembler v. Fitzgerald , 1919 Mass. LEXIS 1038 ( 1919 )

Carroll, J.

The plaintiff employed the defendants, who are stockbrokers, to buy and sell stock on margin. The contract was made February 23, 1916, when the plaintiff deposited $2,000 and received from the defendants a receipt “Subject to marginal conditions hereon,” to the effect that the amount received was to be used by the defendants as margin or collateral security to protect them from losses in their transactions with the plaintiff; and that they were authorized to sell all the stocks, bonds or other property held by them for the plaintiff’s account, at private or public sale, if the amount paid were insufficient to protect them from loss. In the Superior Court the case was heard on the auditor’s report. Judgment was ordered for the defendants and the case reported to the Supreme Judicial Court.

Between February 23,1916, and February 16,1917, the plaintiff ordered the defendants to sell or purchase for his account shares of stock of different corporations. In October of 1917 the defendants, at the plaintiff’s request, delivered to F. H. Milliken and Company twenty shares of Alaska, twenty shares of Isle Royal, thirty shares of Massachusetts Consolidated, thirty shares of North Butte and twenty shares of Utah Consolidated (which were all the.securities then held for the plaintiff’s account), and received from F. H. Milliken and Company the amount of the plaintiff’s indebtedness. At no other time did the defendants deliver or tender to the plaintiff or his agent the stocks purchased by them in accordance with his order.

When an order was given to buy or sell, the defendants mailed to the plaintiff a “bought” or “sold” slip confirming the transaction. On each of these sale slips there was printed “All orders for the Purchase or Sale of any security are received and executed with the distinct understanding that an actual purchase or sale is contemplated, and that you so understand and agree;” and “in the event of your not making delivery of the securities.sold, in time for us to comply with the rule for delivery of securities in the Exchange in which the same have been sold, we are hereby empowered to make delivery of the same for your account, the said securities to be loaned by us to you for the foregoing purpose and to be returned to us on demand.” Upon each of the slips confirming purchases there appeared the printed statement that “All orders for the Purchase or Sale of any security are received and executed with the distinct understanding that an actual purchase or sale is contemplated,” and the further statement, “It is agreed that all securities from time to time carried in your marginal account, or deposited to protect the same, may be loaned or may be pledged by us, either separately or together with other securities, either for the stun due thereon or for a greater sum, all without further notice to you.” On the first of each month, beginning April 1, 1916, the defendants sent to the plaintiff a statement of his account, showing purchases and sales, with the prices, amounts, interest charges and balances. The plaintiff admitted that he read all the printed matter appearing upon the confirmation slips and agreed to all the recitals contained therein.

On April 25, 1916, the plaintiff gave an order to sell forty shares of Butte and Superior. None of this stock was then held by the defendants for his account. The following day he gave an order to buy forty shares. This was to protect the order to sell, the plaintiff admitting that the stock bought was to replace that sold. On November 27, 1916, he ordered the defendants to sell twenty-shares of Pittsburg Coal. They were then carrying for his account ten shares of this stock. The following day he gave an order to buy twenty shares of Pittsburg Coal, which, according to the finding of the auditor, was to cover the ten shares ordered to be sold “beyond the amount which the defendants carried for his account.” Except in these two instances,whenever the plaintiff gave an order to sell, he understood that the defendants were carrying for his account on margin the shares which he ordered sold. Whenever an order was given to buy, he expected that the defendants would carry out his order by the purchase of shares in accordance with the rules of the stock exchange; and whenever an order was given to sell, he intended the defendants should make an actual sale. It was found by the auditor that when the plaintiff opened the account he stated he intended to buy and sell on margin.

R. L. c. 99, § 4, provides, so far as material, that whoever employs another to buy or sell for his account any securities, intending at the time that there shall be no actual purchase or sale, may recover in an action of contract from the person employed any payment made if the person so employed had reasonable cause to believe that said intention existed; but that there shall be no right of action if in accordance with the terms of the employment an actual purchase or sale of the securities or a valid contract therefor is made. By § 6 of this statute, if the person employing another to sell for his account did not own the securities at the time and settlements were made without the completion of the purchase or sale, these facts shall be prima fade evidence within the meaning of § 4 that it was intended no actual sales or purchases should be made and there was reasonable cause to believe said intention existed.

The purchase and sale of stocks by a broker who carries them on margin for his customer are not prohibited by this statute. Unless the person employing the broker meant there should be no actual sales, or purchases and the broker had reasonable cause to believe that such was the case, the statute is not transgressed. Rice v. Winslow, 180 Mass. 500. It is not the unrevealed intention of the plaintiff that is to be proved, but his purpose as appears by the transaction, the acts accompanying it, the means employed, and by all the other circumstances competent as evidence to show his intention and its disclosure to the defendant. See Marks v. Metropolitan Stoch Exchange, 181 Mass. 251, 254; Anderson v. Metropolitan Stock Exchange, 191 Mass. 117, 122. Unless it appears that the plaintiff intended that a real transaction should not take place by the actual purchase and sale of securities, his case, under the statute, fails. The plaintiff did not show he contemplated there should be no actual sales or purchases by the defendants: the auditor expressly finds as a fact upon all the evidence that the plaintiff expected each time he gave an order to buy that the defendants would execute his order and actually purchase the stocks in accordance with the rules of the stock exchange; and whenever he gave an order to sell that the defendants would sell the stocks as directed. Such transactions are not wagering ones, and are not forbidden by the statute. R. L. c. 99, §§ 4, 6. Rice v. Winslow, supra. Post v. Leland, 184 Mass. 601, 604, 605.

The meaning and the effect of this finding are not diminished by the findings that the defendants had reason to believe the plaintiff did not intend to receive from them or to deliver to them the stocks which he directed them to purchase or to sell; and that between these parties there should be no actual sales or purchases. It is immaterial that between the plaintiff and the defendants there were to be no deliveries. Rice v. Winslow, supra. Post v. Leland, supra. The statute refers to the plaintiff’s intention — that intention relates solely to sales and purchases to be made by the defendants, and if the plaintiff intended that actual sales and purchases were to be executed between the defendants and those from whom they bought and to whom they sold, the statute does not give the plaintiff a remedy.

In each of the two instances when the forty shares of Butte and Superior and the twenty shares of Pittsburg Coal were ordered to be sold by the plaintiff, on the iollowing day orders were given by him to buy a like amount to take their place. The slips confirming the sales contained the provision that if delivery was not made by the plaintiff the defendants were authorized to make delivery for his account and to loan the securities for this purpose. The plaintiff read these conditions; he gave no notice that they were adverse to his contract and he testified that he agreed to them. This finding is not inconsistent with the finding that he intended actual sales and purchases should be made, and as he failed to show that the transaction was a wagering contract, under the statute he cannot recover. See Chandler v. Prince, 221 Mass. 495.

As it was contemplated that there should be actual purchases and sales of the stock, as found by the auditor, it is immaterial that the defendants did not set apart for the plaintiff the specific shares bought for him. See Davy v. Bangs, 174 Mass. 238; Chase v. Boston, 180 Mass. 458, 460; Rice v. Winslow, supra.

Under § 6 of the statute, the fact that the plaintiff did not own the securities at the time of the contract of sale or when the order to sell was given, and the fact that settlements were made without completion of the purchase or sale, each was prima facie evidence that he meant that there were to be no genuine transactions by the defendants and that there was reasonable cause so to believe. The acts which are evidence for the plaintiff under this section are admissible for the purpose of showing that he intended no actual sales or purchases should be made for his account, and that the defendants had reason to believe such intention existed. These acts are not conclusive, but merely prima fade evidence, and cannot be relied on to establish as matter of law a decisive intention that genuine sales or purchases should not be effected, when, notwithstanding the prima facie nature of the evidence it has been found as a fact that the plaintiff did intend that these sales and purchases should be really made. Where the positive intention has been found to be present that actual sales and purchases are to be executed, it is not necessarily overcome as matter of law by the presumption which arises from the fact that the plaintiff did not at the time own the stocks in question and settlements were made without the completion of the transaction. The general finding that upon all the evidence it was intended there should be actual sales and pinchases, includes the finding of all the facts essential to that conclusion; it is therefore unnecessary to inquire whether the special facts found were sufficient to make out a prima facie case showing that it was intended there should be no real sales or purchases, or that there was reasonable cause to believe said intention existed. See Emmons v. Westfield Bank, 97 Mass. 230; Chandler v. Prince, 217 Mass. 451, 455.

Houghton v. Keveney, 230 Mass. 49, is to be distinguished. In that case, when the broker was instructed to buy or sell shares of stock, the plaintiff had no intention that the defendant should or should not carry out the order by making actual purchases or sales. The plaintiff did not own the securities ordered to be sold and settlements were made without the completion of the sale or purchase. It was held that these transactions showed the posi-' tive intention that there should be no sales or purchases on the plaintiff’s order. In the case at bar, the positive intention that the plaintiff’s order should be executed by sales or purchases was found as a fact. In Fiske v. Doucette, 206 Mass. 275, the master found that the plaintiff had an affirmative intention that actual sales and purchases should not be made and that the defendant had reasonable cause to believe this. The burden was upon the defendant to show that actual sales and purchases were made; he failed before the master to establish this fact, and it was held by this court that the defence was not made out. There is nothing in Adams v. Dick, 226 Mass. 46, in conflict with what is here decided. In that case, in the general finding for the plaintiff there was included the finding that he intended there should be no actual purchase or sale on his order, and it was decided that this conclusion was not inconsistent with the finding that the plaintiff did not contemplate when he made the contract that the defendant should receive from or deliver to any one else the stocks ordered to be bought or sold. “This is not a finding that there was a negative lack of intention by the plaintiff upon' the vital point that there should be £no actual purchase or salé’ on his orders. It relates to the different subject of delivery and receipt of certificate's.” The fundamental difference between that case and the case at bar, is a difference in the findings of fact made in the two cases.

The plaintiff also contends that he meant that actual sales and purchases should be made and employed the defendants to carry out his orders; that they failed to do so and that he can recover at common law under Greene v. Corey, 210 Mass. 536. Without considering all the objections which might be urged against this contention, it is enough to say that the auditor’s report does not show it was determined as a question of fact that actual purchases and sales were not made by the defendants. The auditor found certain facts and upon them ruled, as matter of law, that the affirmative defence under the statute was not made out. He was then considering the defence afforded the defendants by the statute. His rulings of law were not strictly a part of the report, which must be considered only on the facts found by him. Fisher v. Doe, 204 Mass. 34, 39, 40. Moreover, the trial before the auditor appears to have proceeded wholly upon the theory that the action was based on B. L. c. 99, §§ 4 and 6.

The Superior Court was right in ordering judgment for the defendants.

As the plaintiff cannot recover, we find it unnecessary to discuss the relevancy of St. 1919, c. 247.

Judgment for ihe defendants.