Contract, Construction, Rescission. Waiver. Practice, Civil, Refusal to order verdict, Exceptions.
In an action of contract by a woman to recover $1,250 as the price of five thousand shares of a certain corporation which it was alleged that the defendant had agreed to buy back from the plaintiff, the plaintiff testified that the defendant said to her, "I have five thousand shares here, and if you will take it, if it does not pay you a dividend within a year I will pay you back the money with interest at six per cent," and that she took the shares and paid the defendant $1,250, and that a certificate for the shares was delivered to her. The plaintiff further testified that more than a year later she signed at the request of the defendant the following instrument in writing: "I, C., am the owner of certificate No. 368, 5000 shares R. Company's capital stock. I do authorize W. [the defendant] to dispose of said stock in one block or in any way that it is possible for said W. to dispose of said stock. Said stock to net me not less than 25c. per share. All commissions and other costs for marketing said shares to be paid by said W., providing said W. succeeds in disposing of said shares. I do hereby agree to give said W. an option on said shares of stock for four months from this date," that the plaintiff delivered to the defendant this instrument and also the certificate for the shares and the defendant gave her a receipt for the certificate containing the statement "Said stock to be disposed of for said C. See contract dated this date." No dividend had been paid on the stock. The defendant contended that by signing the instrument in writing the plaintiff had elected to keep the shares as her own property, and asked the presiding judge to order a verdict for him, which the judge refused to do, and the jury returned a verdict for the plaintiff. Held, that the plaintiff by giving the defendant express authority to dispose of the shares which stood in her name did not waive necessarily her right to assert that as between her and the defendant the shares should be treated as his, that the plaintiff's rights under the previous oral agreement after the finding of the jury must be taken to have vested, and that the new agreement, although reduced to writing, did not show as matter of law that the previous oral agreement was rescinded or was merged in a new bargain, and therefore that the refusal of the judge to order a verdict for the defendant was right.
On an exception to a refusal of a presiding judge to order a verdict for a defendant, the ruling of the judge will be sustained if there is any ground on which the plaintiff's case should have been submitted to the jury, although such ground is not the one on which the presiding judge submitted it.
SHELDON, J.
The only question raised by these exceptions is whether a verdict should have been ordered for the defendant as matter of law. His contention is that, even if the jury found that the contract on which the plaintiff relied was proved, and that he had agreed to pay her, in the contingency which has occurred, $1,250 for the stock in question, yet she could not maintain her action upon his promise because, by signing the paper of June 1, she had elected to keep the stock as her own property. But, apart from the question whether she was induced to sign this new agreement by the fraud of the defendant, the majority of the court are of opinion that her execution of it was not necessarily a waiver of her rights under the previous oral agreement. Her right of action upon that must be taken, after the finding of the jury, to have become vested. But the certificate of stock was still in her name, and something must be done to transfer it to the defendant. Her giving him express authority to dispose of, that is, to sell and transfer, the stock which stood in her name was not of itself a waiver of her right to contend that, as between him and her, the stock should be treated as his. And it is significant that it was expressly stipulated that he should sell it for enough to net her the exact amount to which she was entitled under the old oral contract. Nor does the agreement to give the defendant an option on the stock for four months import as matter of law more than a recognition of the fact that the legal title was in her, that his authority to sell should not prevent him from taking the stock, and that she would not bring suit for four months. That time had more than expired when she brought her writ. Such a new agreement, though reduced to writing, does not necessarily as matter of law show that a former oral agreement under which rights already have vested is rescinded or merged in the new bargain. Edgar v. Joseph Breck Sons Corp. 172 Mass. 581, 583, and cases there cited. Accordingly the defendant's request was rightly refused.
It may be said that the case was not submitted to the jury upon the ground upon which we rest our decision. That is true; but the defendant is not concerned with this. He declined to go to the jury at all, choosing to stand wholly upon his contention that he was entitled to have a verdict ordered in his favor. He must fail if there was any ground upon which the jury could find against him.
Exceptions overruled.