Practice, Civil, Auditor's report. Evidence, Extrinsic electing writings. Stockbroker. Statute of Frauds. Wagering Contracts. Contract, Validity.
Where, in an action at law, after the filing of the report of an auditor, the defendant moves that the report be recommitted to the auditor for correction of certain alleged errors of law in his findings, and the motion is denied, at the trial of the case it is proper for the presiding judge to allow the entire report to be put in evidence and read to the jury, it being open to the defendant to request the presiding judge to instruct the jury to disregard any findings of the auditor erroneous as matter of law if such errors appear on the face of the report.
At the trial of an action for breach of contract against one who carried on business ostensibly as a stockbroker with a central and branch offices, it appeared that the plaintiff went to a branch office and gave to an employee of the defendant an order to buy certain stock, at the same time making a specific oral agreement as to terms under which the stock was to be kept in possession of the defendant subject to the plaintiff's further orders and payment of margins. This order in the plaintiff's hearing was telephoned to the central office, and, on the receipt by the defendant's employee of a reply that the order had been filled, the plaintiff was so informed and paid to the manager of the office a certain sum as margin under her oral agreement. The manager thereupon filled out and delivered to the plaintiff a printed form of ticket or contract, which was signed by no one and had no place for signatures, but purported to set out an actual purchase of stock by the plaintiff from the defendant and not through the defendant as broker. The ticket did not set out the whole of the oral agreement previously made. The defendant requested the presiding judge to rule that the ticket was a memorandum of the contract and could not be varied by extrinsic evidence. Held, that the request rightly was refused.
R.L.c. 74, § 7, providing that every contract for the sale or transfer of a share in the stock of a corporation shall be void unless at the time of the making of the contract the party contracting to sell or assign the came is the owner or assignee thereof or authorized by such owner or assignee so to sell or transfer, has no application to a contract with a broker for broker's services in purchasing stock.
At the trial of an action against a stockbroker for breach of a contract with the plaintiff, his customer, the defendant filed a declaration in set-off to recover certain payments made by him to the plaintiff in transactions of the nature described in R.L.c. 99, § 4, and introduced evidence tending to show settlements of such transactions by the payment of differences without any actual purchase or sale of stock, and requested the presiding judge to rule in accordance with R.L.c. 99, § 6, that such settlements were prima facie evidence that the plaintiff in set-off had an affirmative intention that there should be no actual purchase or sale of that stock and that the defendant in set-off had reasonable cause to believe that such intention existed. It further appeared from the finding of the jury that the plaintiff in set-off was acting for the defendant as her broker, and that the parties were not dealing together as principals. Held, that, in view of the finding of the jury, the ruling requested was immaterial and was refused rightly.
SHELDON, J.
The court denied the defendant's motion to recommit the auditor's report, and the correctness of this action is not before us, as it was neither excepted to nor appealed from. Sullivan v. Arcand, 165 Mass. 364. Accordingly the judge at the trial properly allowed the report to be put in evidence and read to the jury. Any mistakes in ruling upon questions of law that may appear by the report to have been made by an auditor can be corrected by instructions to the jury. Allwright v. Skillings, 188 Mass. 538. Leverone v. Arancio, 179 Mass. 439. Winthrop v. Soule, 175 Mass. 400. It was of course open to the defendant to ask the court to rule that any of the auditor's findings were erroneous as matter of law, and not to allow the jury to consider such findings, if the errors appeared upon the face of the report. Briggs v. Gilman, 127 Mass. 530. Jones v. Stevens, 5 Met. 373, 377.
The defendant's main contention is that the papers or tickets which were given by his agents to the plaintiff as evidence of her several transactions with him, copies of which are set out in the bill of exceptions, were written agreements, the effect of which could not be varied by extrinsic evidence, and that these papers showed contracts of sale or purchase made directly between the plaintiff and the defendant; and accordingly that the auditor's finding that the defendant acted merely as broker, and undertook to buy and sell for her, was wrong as matter of law, and that the judge at the trial erred in submitting this question to the jury. Marks v. Metropolitan Stock Exchange, 181 Mass. 251. Anderson v. Metropolitan Stock Exchange, 191 Mass. 117, 119, 120. But it cannot be said as matter of law that these papers were written agreements within the meaning of the rule upon which the defendant relies. They were not signed by either of the parties; so far as appears by the printed exhibits, they contained no place for signatures. We do not understand either party to claim that they contain the real agreements which were made. According to the auditor's report, the contract in each case was made verbally between the customer and the defendant's agents, and the papers in question were filled out and given to the customer only later, after a real or pretended purchase or sale of the stock in question had been made by the defendant, and after the rights of the parties had been fixed by the verbal agreement; and the bill of exceptions does not show that this finding was controverted at the trial. But if so, the contract was made when the parties made their oral agreement; and the paper afterwards given did not as matter of law show a rescission of that agreement and the substitution of the paper as a written contract. Edgar v. Breck Sons Corp. 172 Mass. 581, 583, and cases there cited.
In the cases relied on by the defendant, the written papers were treated by both parties as the agreements made between them. If the original contract was verbal and entire, the fact that part of it was afterwards reduced to writing does not make parol evidence inadmissible to show the whole agreement; and that question, if in dispute, must be passed upon by the jury. Ayer v. Bell Manuf. Co. 147 Mass. 46. Deshon v. Merchants' Ins. Co. 11 Met. 199. Accordingly the requests of the defendant numbered from 10 to 15 inclusive could not have been given.
For the same reasons, it would have been improper to give the defendant's ninth request. If the defendant was employed as a broker to buy stocks for the plaintiff, the provisions of R.L.c. 74, § 7, had no application. Barrett v. Hyde, 7 Gray, 160. Colt v. Clapp, 127 Mass. 476, 480.
We are of opinion also that it necessarily follows from what has been said and from an examination of the auditor's report that the judge rightly refused to instruct the jury to disregard the findings of the auditor mentioned in the first eight requests of the defendant. These were all findings of fact which the auditor was warranted in making.
The defendant's sixteenth and seventeenth requests seem to us to contain correct statements of the law. R.L.c. 99, § 6. Marks v. Metropolitan Stock Exchange, 181 Mass. 251, 255. Thompson v. Brady, 182 Mass. 321. They were appropriate to the issue raised upon his declaration in set-off, and apparently might properly have been given. But it affirmatively appears by the bill of exceptions that the defendant has not been aggrieved by their refusal. Under the instructions given to the jury, they could not find for the plaintiff, either upon her declaration or upon the declaration in set-off, unless they found that in the matters at issue he was acting for her as her broker. Their verdicts for the plaintiff have accordingly settled that question. But this is fatal to the defendant's right of recovery upon his declaration in set-off. Lyons v. Coe, 177 Mass. 382. Accordingly, the question raised by these requests has now become immaterial. Wing v. Chesterfield, 116 Mass. 353. Kingman v. Tirrell, 11 Allen, 97.
No question was saved by the exceptions or has been made before us as to the releases alleged to have been given by the plaintiff to the defendant.
Exceptions overruled.