Mann v. Bishop

136 Mass. 495, 1884 Mass. LEXIS 148

• Court: Massachusetts Supreme Judicial Court
• Decided: February 28, 1884
• Status: Published

Opinion

Colburn, J.

The 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.

The 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.

Judgment for the plaintiff on the finding.