Contract, Construction, Performance and breach. Judgment. Evidence, Presumptions and burden of proof.
Where, in an action for breach of a contract, the plaintiff relies upon a judgment which he contends is conclusive of the issues on trial, the burden is on him to prove that those issues were tried and settled in the action which resulted in the judgment.
In an action of contract the plaintiff, in a specification supplementary to his declaration, claimed that the defendant owed him the amount of $357.78, which he alleged was a balance due on account of a dividend of $4 per share on shares of the second preferred stock of a corporation which he had purchased in reliance upon the defendant's oral promise that the dividend would be paid. The action was heard by auditors under a rule specifying that their findings of fact should be final. The evidence for the plaintiff consisted of his testimony as to the oral contract and a judgment rendered in a previous action begun after the date when the dividend was alleged to have become due. The auditors found that no such agreement as alleged by the plaintiff was made. The declaration in the action in which the judgment relied on was rendered set forth a claim for a dividend on common stock but no claim for a dividend on preferred stock. Held, that a finding, that the judgment was not conclusive on the issues raised by the specification, was warranted.
In an action of contract the plaintiff in a specification supplementary to his declaration claimed that on January 3, 1916, a certain sum was due to him from the defendant as the equivalent of a dividend of $4 per share upon shares of common stock of a certain corporation, by reason of the fact that the defendant had agreed to pay him a dividend of eight per cent upon each share of common stock "for as long as the plaintiff owned the stock." At the trial of the action the plaintiff relied upon oral testimony which was disbelieved and upon the record of a judgment for the plaintiff in an action against the same defendant begun in April, 1915. It appeared that allegations in the declaration in that action were to the effect that the plaintiff purchased the stock in 1913, that semiannual dividends should have been paid in June and December of 1913, that they were not paid, and that the defendant owed their amount to the plaintiff. It further appeared that the plaintiff sold his stock in March, 1916. Held, that the judgment relied on was not conclusive evidence in favor of the plaintiff since at most it appeared that dividend dates, if any, were in June and December and that dividends to be declared on the stock in 1916 would not be declared before June of that year, before which time the plaintiff had ceased to own his stock.
Findings for the defendant on both the specifications in the action above described were warranted because it was found that the defendant had not made the oral agreement alleged and testified to by the plaintiff and the judgment relied on was not as a matter of law conclusive in favor of the plaintiff on either specification.
BRALEY, J.
The auditors, whose findings of fact the parties stipulated should be final, report that on May 12, 1913, the plaintiff bought of the Martin Manufacturing Company, of which the defendant was president, one hundred shares of preferred and seventy-seven shares of its common stock. The plaintiff contended, and testified, that as part of the consideration the defendant, through whom the purchase was made, told him he would receive a dividend July 1 on all the stock of $8.00 a share, and that he then said to the defendant he would buy the stock on that understanding, and the defendant replied "he would agree to that for as long as the plaintiff owned the stock." But on conflicting parol evidence the auditors report that the alleged contract had not been proved. The plaintiff however introduced the record of a judgment in his favor recovered against the defendant in an action of contract in June, 1916, in which the declaration covered antecedent dividends on the common stock due June 20, 1913, and December 31, 1913. A transcript of the record, although referred to, is not included in the report, but was put in evidence before the trial court, and is fully described in the judge's findings and rulings which form part of the plaintiff's exceptions. The plaintiff asserts that the judgment against the defendant in his favor in the former action arose under the same contract, and that his right of recovery in the present action for dividends on the common stock is thereby established.
The record of the original case having been introduced, the plaintiff, on whom the burden of proof rested, was required to show that the matters tried and settled in the first case were the same as the issues in the case at bar before it could be ruled that the judgment was conclusive. Foye v. Patch, 132 Mass. 105. Corbett v. Craven, 196 Mass. 319, 322. Cinamon v. St. Louis Rubber Co. 229 Mass. 33, 37.
The first of the specifications filed in the case at bar on the defendant's motion alleged, that on or about July 3, 1913, a dividend on one hundred shares of "the second preferred stock" of the company was due him, but, having received only $42.22, the defendant owed on these shares $357.78, with the further sum of $308, the equivalent of $4 a share upon seventy-seven shares of the common stock. The judge after a full recital of the proceedings finds, that in the first action the plaintiff alleged two breaches of the contract, namely, the refusal of the defendant to repurchase stock which it was alleged he had agreed to do under a contract not declared on in the present case, and his failure to pay dividends on the common stock. The judge found that, "It does not appear from the record for which of these breaches the jury assessed damages, or whether damages were assessed for both, or whether more than one of these breaches was established. It is entirely consistent with the record that the jury may have found that there was no promise to pay dividends either on the common or on the preferred, but that there was a breach on the defendant's part in failing to repurchase the stock, and that the resulting loss is expressed by the verdict. . . . If it be inferred from the amount of the verdict, that it was for unpaid dividends, it must have been for unpaid dividends on the common stock, because there was no allegation in the original action that there was any failure to pay dividends on the preferred" stock which the plaintiff now seeks to recover under the first specification.
The second specification sets forth that there was due the plaintiff on or about January 3, 1916, $308, the equivalent of the dividends on seventy-seven shares of the common stock at $4 a share. It is found that the declaration in the first action alleged no more than that the defendant agreed that he would cause the corporation to declare and pay dividends on the common stock at the annual rate of eight per cent beginning June 30, 1913. If it be assumed that the judgment established the fact that such an agreement was made, then the agreement would be satisfied if a dividend at that rate were declared at any time in 1916 but not later than June 30 in that year. "It was, however, alleged in the last paragraph of the declaration in the original case that on June 30, 1914, the defendant caused but one dividend of four per cent on the common stock to be paid and that a further dividend of $4 per share should have been paid June 30, 1913, and a further dividend of like amount on December 31, 1913." If this is to be construed as amounting to an allegation that semiannual dividends were to be paid at the rate of four per cent on June 30 and December 31, the judge was warranted in finding that no dividends, whether annual or semiannual, would fall due for the year 1916 before June 20, 1916. And the plaintiff, as the auditors state, having sold his stock on March 23, 1916, the defendant's promise under the second specification has expired by limitation. We perceive no error of law in the rulings or refusals to rule and the exceptions must be overruled. Stone v. St. Louis Stamping Co. 155 Mass. 267, 271. Cote v. New England Navigation Co. 213 Mass. 177, 182.
So ordered.