Meehan v. Sharp

24 N.E. 907, 151 Mass. 564, 1890 Mass. LEXIS 267

• Court: Massachusetts Supreme Judicial Court
• Decided: June 19, 1890
• Status: Published

Opinion

Knowlton, J.

The plaintiff had a certificate showing that he was the beneficial owner of fifty shares of stock in a corporation. The shares had not been issued, but were held in pool, and were to be issued whenever the board of directors should vote to authorize a delivery of them, and, if they should not so vote within six months from the date of the certificate, were to be delivered to the plaintiff forthwith, on demand and the presentation of the certificate. Under the instructions of the presiding justice, the jury must have found that the defendant orally agreed with the plaintiff to buy of him the fifty shares mentioned in the certificate, and to pay him therefor five dollars a share, and that thereupon, in pursuance of the agreement, the plaintiff delivered and the defendant received and accepted the certificate, with the plaintiff’s indorsement of his name on the back thereof.

It has been held in this Commonwealth, and in several other States, that shares of stock in a corporation are within the provisions of the statute of frauds in regard to sales of “goods, wares, or merchandise fot the price of fifty dollars or more.” Pub. Sts. c. 78, § 5. Tisdale v. Harris, 20 Pick. 9. Boardman v. Cutter, 128 Mass. 388. Pray v. Mitchell, 60 Maine, 430, 435. In England, although the law was formerly otherwise, and in some of the American States, such shares are not held to be “goods, wares, or merchandise,” but a different and peculiar kind of property, to which the statute does not apply. Duncuft v. Albrecht, 12 Sim. 189. Humble v. Mitchell, 11 A. & E. 205. In Somerby v. Buntin, 118 Mass. 279, it was decided that an oral agreement for the sale of an interest in an invention before letters patent are obtained may be enforced; and it was said in the opinion, that “ the words of the statute have never yet been extended by any court beyond securities which are subjects of common sale and barter, and which have a visible and palpable form.”

- In tbe present case, it is at least doubtful whether the contract, which was for the sale of stock that had not been regularly issued, can properly be brought within the statute, under the authorities in this Commonwealth. If not, the instruction was sufficiently favorable to the defendant.

But if we assume, in accordance with the defendant’s contention, that the plaintiff’s interest in the stock was “ goods, wares, or merchandise,” the only question in this case is whether the defendant’s receipt and acceptance of the indorsed certificate was sufficient to charge him with a liability for the price. The plaintiff’s indorsement, in connection with the sale of his interest in the stock and the delivery of the certificate, impliedly authorized the defendant to write over the signature a contract of assignment of the plaintiff’s rights in the property. In view of the nature of the interest sold, the delivery was the only one possible. The defendant received and accepted all that was capable of manual transfer. His receipt and acceptance, under the circumstances, must be deemed to have been for the purpose of assuming control of the property. He had all the indicia of ownership, he acquired all the possession which it was possible to take of the property, and his act was a constructive acceptance of the property itself. In this aspect of the case the instruction was correct. Badlam v. Tucker, 1 Pick. 389. Pratt v. Parkman, 24 Pick. 42. Audenreid v. Randall, 3 Cliff. 99, 113. Dows v. Greene, 24 N. Y. 638.

Exceptions overruled.