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STEWART v. JOHNSON. (Supreme Judicial Court of Massachusetts. Suffolk. May 21, 1925.)

money expended, if any, in connection therewith. The defendant sent a telegram to the plaintiff dated February 9, 1910: "Brokers kept smelting shoe and pillsbury I will protect account." It is the contention of the

1. Contracts 322 (3)-Breach of contract plaintiff that these two telegrams constitute not proved.

Assuming that defendant was under obligation to buy for account of plaintiff stock of company at $20 a share or lower, there was no breach proved, where stock did not at any time sell below $20, and it was not shown what opportunity to buy at $20 existed.

2. Brokers 38 (7)-When customer entitled to nominal damages for broker's breach of agreement to carry stock stated.

Even when binding agreement by broker with customer to carry stocks on margin is broken by sale of stock, customer is entitled to nominal damages only in event of his being able to purchase shares at approximately price for

which broker sold them.

3. Contracts26-Correspondence held not sufficiently distinct and unequivocal to establish contract.

Letters and telegrams from defendant to plaintiff, concerning purchase of stocks, held consistent with theory that defendant was taking friendly interest in plaintiff's desire to make money by speculation, and with intention of purchasing stocks on plaintiff's account, and not sufficiently distinct and unequivocal to establish contract to do so.

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the original contract and that thereby the defendant became bound to deposit money or securities with the brokers when required to protect the account. The above-mentioned stock was carried in the plaintiff's account until the summer of 1910, when it was sold because the additional security required was not furnished, and the account was closed by the brokers transmitting to the plaintiff the proceeds of the sale of the stock. The plaintiff, however, is not asking damages because of the defendant's failure to advance money or securities to prevent the sale of the stock; but contends that at the time it was sold the parties modified their original contract by an agreement that the defendant would repurchase 1,000 shares of Smelting Company stock when it reached the price of $20 a share in the Boston market. The plaintiff relies for proof of this modification upon telegrams and letters which are embodied in the record. No useful purpose would be served by a summary of their contents.

[1, 2] If it be assumed that the defendant was under obligation to buy for the account of the plaintiff stock of the Smelting Company at $20 a share or lower, there has been no breach proved because it did not at any time sell below $20 per share. On February 25, 1915, it was quoted at "20-201⁄2" and on no other date was there a lower quotation. It does not appear how much was sold on that date, or what opportunity, if any, a person would have had to buy at that price. Shortly before the stock reached this lowest quotation, the defendant advised the plaintiff that it would be unwise to buy it, and the

R. B. Owen and E. R. Anderson, both of plaintiff then could have executed his own Boston, for plaintiff.

orders directly with the broker, or by send

J. E. Hannigan, of Boston, for defendant. ing money to the defendant for the purchase

SANDERSON, J. In this action the plaintiff is seeking damages for a breach of contract, depending for his proof upon certain letters and telegrams. Evidence was introduced to show that in the month of February, 1910, the plaintiff was carrying on margin with a brokerage firm 1,000 shares of the common stock of the United States Smelting, Refining & Mining Company, hereinafter called the Smelting Company, and 10 shares of United States Shoe Machinery Corporation stock; that about February 4, 1910, upon receipt of a demand from the brokers for payment of $10,000, he telegraphed the defendant asking him to call on them and do what he could to protect the plaintiff's interests, offering to compensate him in any reasonable amount for services rendered or

of any amount of stock desired which could be procured at or near the price of $20 per share. Even when a binding agreement by a broker with a customer to carry stocks on margin is broken by a sale of the stocks, the customer is entitled to nominal damages only in the event of his being able to purchase the shares at approximately the price for which the broker sold them. Hall v. Paine. 224 Mass. 62, 112 N. E. 153, L. R. A. 1917C, 737.

[3] Furthermore, if it be assumed that in February, 1910, there was a contract by which the defendant was to protect the plaintiff's account liability under it, unless it had been modified, was fixed when all stock in that account was sold. After a breach it would require a new offer and a new acceptance to make a contract. The plaintiff tes

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(147 N.E.)

tified that the only offer of compensation, delivered to insured on payment by him of prewhich he made was that which preceded the | mium, delivery of policies to broker held delivtelegram from the defendant dated February ery to agent of insured.

2. Insurance 137(1)-Provision that fire policies shall not attach until payment of premium cannot be implied.

In the absence of express provision that fire policies should not be in force until payment of premiums, such provision cannot be implied. 3. Insurance 228-Fire insurance policy canceled without consent of insured only by observing policy provisions.

Where insurer reserved right in fire insurance policy, after written notice and tendering return of portion of premium, to cancel policy, only method by which insurer could cancel it as of right without consent of insured was by observing policy provisions.

4. Insurance 238 (2)-Agent to procure insurance not, ipso facto authorized to effect cancellation of policy.

An agent to procure insurance is not, from that engagement alone, authorized to effect a cancellation of the policy. 5. Insurance 668 (2) '

9, 1910, containing the statement, "I will pro-
tect account." Cummings v. Arnold, 3 Metc.
486, 494, 37 Am. Dec. 155; Thomas v. Barnes,
156 Mass. 581, 31 N. E. 683; Rowe v. Pea-
body, 207 Mass. 226, 93 N. E. 604. If the
statements, "It is my expectation to take ad-
vantage of the panic prices in copper," "when
the proper time comes, will buy for you,"
"there may be an opportunity one of these
days to buy it in," and "Mr. Dibble believes
that the stock will eventually go to 20 or
lower. I am waiting for that time," which
may be found, respectively, in the defend-
ant's letters dated July 14, August 1, October
8, and December 13, could be construed as
promises, they are not undertakings to buy
any definite number of shares of stock or to
use the defendant's money in buying stock,
and they are in other respects vague and un-
certain. All the letters and telegrams which
preceded the letter of the plaintiff in Decem-
ber, 1915, in which he asked the defendant
to fulfill his promise to buy for him 1,000
shares of Smelting Company stock, are con-
sistent with the theory that the defendant
was taking a friendly interest in the plain-
tiff's desire to make money by speculating in
stocks, and with the intention on his part,
if in his judgment it seemed best, of execut-on
ing orders on the plaintiff's account and with
the plaintiff's money for the purchase on
margin of any stock which he thought would
advance in price. The promises relied on are
not sufficiently distinct and unequivocal to
support an action. Elwell v. Cumner, 136
Mass. 102, and upon all the evidence the
plaintiff has not maintained the burden of
proving the contract set out in any count of
the declaration. Kehlor Flour Mills Co. v.
Linden, 230 Mass. 119, 122, 119 N. E. 698;
De Vito v. Boehme & Rauch Co., 239 Mass.
290, 132 N. E. 35. The order directing a ver-
dict for the defendant was right. If the two
telegrams and letters offered by the plaintiff
and excluded had been in evidence the re-
sult reached would be the same.
Exceptions overruled.

Whether insured clothed broker with authority as agent to waive policy requirement for 10 days' notice of cancellation, and empowered him to return policies without notice, held for jury.

Where policies of fire insurance were delivered to broker as agent of insured, in action policies, whether insured, who had paid no part of premium and had told broker he was thority as agent to waive policy requirement for unable to pay, had clothed broker with au10 days' notice of cancellation by insurer, and empowered him to return them for cancellation without notice, held under evidence for jury.

Report from Superior Court, Suffolk County; W. P. Hall, Judge.

Action by Julius Michelson against the Franklin Fire Insurance Company of Philadelphia, to recover on two policies of fire insurance. Defendant's motion for directed verdict was denied, verdict was directed for plaintiff, and case reported. New trial granted.

Charles L. Favinger, of Boston, for plain

tiff.

Walter L. Came, of Boston, for defendant.

RUGG, C. J. This is an action of con

MICHELSON V. FRANKLIN FIRE INS. CO. tract to recover on two policies of fire in

OF PHILADELPHIA.

(Supreme Judicial Court of Massachusetts. Suffolk. May 25, 1925.)

I. Insurance 136(2)-Delivery of fire insurance policies to broker held delivery to agent of insured.

In view of G. L. c. 175, §§ 162, 169, where policies of fire insurance were delivered by insurer's agent to a broker, who owed duty to both insured and insurer, and it was not intended that policies be operative only when

surance. It appears to have been undisputed that the local agents of the defendant in November, 1921, delivered the two policies in the usual Massachusetts standard form to one Compton, an insurance broker who had applied for them at the request of the plaintiff. The defendant's agents rendered bills for the premiums to Compton for the first time in December, 1921. Compton did not deliver the policies to the plaintiff because he had theretofore had difficulty in collecting

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for the plaintiff extended no further than the specific insurance in question. Commonwealth Mutual Fire Ins. Co. v. Fairbank Canning Co., 173 Mass. 161, 164, 53 N. E. 373; Sheridan v. Massachusetts Fire & Marine Ins. Co., 233 Mass. 479, 124 N. E. 249; Stilwell v. Mutual Life Ins. Co., 72 N. Y. 385, 391. Being a broker, he was by G. L. c. 175, § 169, agent of the defendant for the purpose of receiving the premiums on the policies. He therefore occupied a dual relation, owing a duty to both parties.

premiums from the plaintiff in time to pay, age insurance for the plaintiff. His agency the companies. Compton made demands up on the plaintiff for the premiums and sent him bill for same on February 26, 1922. The property covered by the policies was injured by fire on March 25, 1922. On the next day the plaintiff paid Compton the premium and the latter gave the plaintiff a receipt. Thereafter the plaintiff told Comp,ton of the fire. In the very last of February or in March before the 9th, Compton returned the policies to the agents of the defendant and they were canceled as of their date and the charge for premiums was canceled. Each policy bore a stamp purporting to show cancellation on March 9, 1922. There was evidence, which was contradict-lection of the premium distinguishes this ed, tending to show that Compton, between February 26, and March 9, said to the plaintiff that, if he did not pay for the policies, they would have to be returned and that the plaintiff said he was unable to pay for the policies; that Compton received the payment of the premium understanding that it was for new insurance, but at the same interview, on being notified of the fire, he offered to return the premium to the plaintiff, who refused to accept it.

Each policy contained these provisions: "This policy may be canceled at any time at the request of the insured, who shall thereupon be entitled to a return of the portion of the above premium remaining, after deducting the customary monthly short rates for the time this policy shall have been in force. The company also reserves the right, after giving written notice to the insured and to any mortgagee to whom this policy is made payable, and tendering to the insured a ratable proportion of the premium, to cancel this policy as to all risks subsequent to the expiration of ten days from such notice, and no mortgagee shall then have the right to recover as to such risks. * * * If the premium on this policy has not been paid to the company or its agent or to the duly licensed insurance broker through whom the contract of insurance was negotiated, this policy may be canceled by the company in the manner herein provided without tendering to the assured any part of the premium."

No oral or written notice was given to the plaintiff under the terms of the policy of intention to cancel the policies or of the fact that they had been canceled.

Compton was an insurance broker. G. L. c. 175, § 162. The work performed by him, as shown on this record, indicates that he was acting as a kind of middleman between the insured and the agents of the insurer. Arff v. Star Fire Ins. Co., 125 N. Y. 63, 25 N. E. 1073, 10 L. R. A. 609, 21 Am. St. Rep. 721; Northrup v. Piza, 43 App. Div. 284, 289, 60 N. Y. S. 363, affirmed, 167 N. Y. 578, 60 N. E. 1117. He appears to have been acting as agent for the plaintiff in undertaking to procure the particular insurance. There is no evidence tending to show that he was the general agent to place and man

[1, 2] The fact that for some purposes Compton was the agent of the plaintiff as well as agent for the defendant for the col

case from Hoyt v. Mutual Benefit Life Ins. Co., 98 Mass. 539; Markey v. Mutual Benefit Life Ins. Co., 118 Mass. 178, 193; Myers v. Liverpool & London & Globe Ins. Co., 121 Mass. 338; Wainer v. Milford Mutual Fire Ins. Co., 153 Mass. 335, 26 N. E. 877, 11 L. R. A. 598; and Cunningham v. Connecticut Fire Ins. Co., 200 Mass. 333, 337, 86 N. E. 787. It is not a necessary inference from the evidence that the parties intended that the policies should be operative only when delivered to the insured upon payment by him of the premium. The policies were delivered to Compton in November and remained in his possession until late in February, a period of about three months. They were delivered on his credit and bill therefor was not sent him until December, 1921. Compton did not deliver the policies at once to the plaintiff in order to protect Compton's primary liability to the defendant for the premium; it was not to protect the defendant. We are not dealing here with a case where the delivery to the broker or agent of the plaintiff was immediately revoked, as in Kooistra v. Rockford Ins. Co., 122 Mich. 626, 81 N. W. 568. It seems manifest that, if the fire had occurred late in November, the policies had attached and the plaintiff could have recovered. The delivery to Compton was in these circumstances a delivery to the agent of the plaintiff. There was no express provision that the policies should not attach until paid for. None can be implied from the facts shown.

[3] The only way in which the defendant could cancel the policies as of right without the consent of the plaintiff, after they had once attached, was by observing the provisions of the policies in that regard. Confessedly that was not done. Hence it could not rightly have been ruled as matter of law that the plaintiff could not recover.

[4] An agent to procure insurance is not from that engagement alone authorized to effect a concellation of the policy. Grace v. American Central Ins. Co., 109 U. S. 278, 282, 3 S. Ct. 207, 27 L. Ed. 932; Adams v. Manufacturers' & Builders' Fire Ins. Co. (C. C.) 17 F. 630; Hermann v. Niagara Fire

(147 N.E.)

Ins. Co., 100 N. Y. 411, 415, 3 N. E. 341, 53 Am. Rep. 197; Johnson v. North British & Mercantile Ins. Co., 66 Ohio St. 6, 16, 63 N. E. 610.

[5] Compton testified in substance that, not having the money to advance, he asked Michelson if Michelson could pay him on these policies then and Michelson said he could not, that he was "broke." Whereupon Compton told him, "Well, the company is calling for the money or the policies and I must deliver either one or the other." He testified that he had undoubtedly sent bills to Michelson for the premiums on these policies shortly after he (Compton) had received them. He had also seen Michelson in person for the purpose of collecting the money, but he could never get the money; and this particular conversation took place just before the cancellation. "It was the last call" and some time after the bill of February 26. In this conversation, he told Michelson that he must either have the money or he (Compton) would have to return the policies. He told him that the companies were demanding that the policies be returned or paid for and all Michelson said was, "I can't pay you now, I am broke." Whereupon Compton said that he could not pay for them; that he was pretty low in money himself and that he must return the policies and that was the end of the conversation. Compton returned the policies in person to the agents of the defendant some time prior to the date of cancellation on the policies, March 9, 1922. He returned them for the purpose of being canceled. This testimony was contradicted by the plaintiff; but the jury might have believed it. If it was the truth, it was sufficient to support a finding that the plaintiff clothed Compton with authority as his agent to waive the requirement of the policies for ten days' written notice to the insured of - cancellation, and empowered him, in view of the fact that he had paid nothing for the policies and had had the benefit of them for some time to return the policies for cancellation without notice. Whether this was so was a question of fact to be determined by the jury under appropriate instructions. It was error to rule as matter of law that the plaintiff was entitled to recover on the poli

from making or receiving payments thereunder
by one asserting claim, but, on hearing bill was
ordered dismissed, held suit by payee, subse-
quent to order but prior to final decree, to es-
tablish debt created by note, alleging default in
payments continuously from time prior to is-
suance of injunction, was not subject to de-
fense that defendant was restrained from mak-
ing payments or that plaintiff because of in-
junction did not come with clean hands.
2. Injunction 181-Temporary restraining
order, continued in force until further order
of court, held terminated by order of dis-
missal, and not in force until final decree.

Where, on hearing of merits of bill for injunction, the judge found for defendants and entered order authorizing defendant to prepare decree of dismissal, a temporary restraining order, theretofore issued and by order extended until further order of court, was thereupon terminated, and did not remain in force until entry of final decree, in absence of order as permitted by G. L. c. 214, §§ 21, 22, continuing it in force pending appeal.

Appeal from Superior Court, Middlesex County; Marcus Morton, Judge.

Suit by Aristides A. Stathopoulos against Theodore A. Reeksting and the Gillette Safety Razor Company. Decree for plaintiff, and defendant Reeksting appeals. Affirmed.

M. R. Flynn, of Malden, for appellant. J. C. Johnston and G. K. Richardson, both of Boston, for appellee.

WAIT, J. November 2, 1923, the defendant Reeksting made a promissory note payable to the plaintiff, Stathopoulos. The note was secured by a mortgage of personal property. November 30, 1923, one Branis, in proceedings in equity against Reeksting and Stathopoulos begun November 10, 1923, obtained an order restraining Reeksting from paying Stathopoulos anything upon the note, and Stathopoulos from receiving and in any way enforcing payment by Reeksting until a hearing be had on December 6, 1923, on an order to show cause why an injunction against such payment and enforcement should not issue, On said December 6, the court ordered the injunction to be continued "until further order of the court." A hearing upon the merits of the bill of Branis was had; and on April 2, 1924, the judge found for the defendants and entered an order for a decree, in form following: "Let the defendant prepare a decree dismissing the bill with costs." A final decree in accord therewith was entered on June 19, 1924, from which no appeal was claimed. About May 1, 1924, Stathopoulos began proceedings to foreclose his mortgage 1. Bills and notes 452(1)-Suit to establish for nonpayment of installments upon the debt created by note held not subject to de-note which had thereby become due. No payfense that plaintiff had been enjoined from making payment.

cies.

New trial granted.

STATHOPOULOS v. REEKSTING et al. (Supreme Judicial Court of Massachusetts. Middlesex. May 23, 1925.)

Where both maker and payee of note were, under G. L. c. 214, § 9, temporarily enjoined

ments in accord with the terms of the note
had been made by Reeksting, who was noti-
A fore-
fied of the proceedings to foreclose.
closure sale was made on May 29, 1924, after

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an adjournment from May 9, of which Reeksting had notice. The property was sold for $300. The expense of the sale was $50. The property was delivered by Stathopoulos some two or three weeks thereafter.

On February 29, 1924, the answer alleges, | Stathopoulos brought a bill in equity against Reeksting to establish the debt created by the note, alleging default in payments due in December, 1923, and January and February, 1924. The bill was dismissed on November 20, 1924; and the present bill was brought forthwith to establish the same debt, but alleging default in payments due in each month from December, 1923, through November, 1924. In both bills last referred to, the Gillette Safety Razor Company was made a defendant; and both sought to reach and apply stock held by Reeksting in that corporation. The defense of Reeksting is that until June 19, 1924, he was restrained by the injunction in the Branis suit from making payment on the note; and that Stathopoulos does not come into court with clean hands, since he was likewise restrained until June 19, 1924, from bringing suit or making a foreclosure sale to enforce payment of the note.

with the Branis suit. Had there been any contempt in bringing suit in February of 1924, it was certainly purged at the dismissal of that proceeding. There was no injunction in force when this bill was brought. The final decree dismissing the Branis cause had then been entered.

Reeksting is in error in claiming that not until June 19, 1924, the day of entry of the formal decree ordered April 2, was the injunction in the Branis suit at an end. He owed the amount found due. He was not relieved from payment after April 2, 1924. He has not been harmed. He has not paid. The decree of the superior court was right; and, as modified by adding the costs of this appeal, the

Decree is affirmed.

ANAGNOSTI v. ALMY et al. (Supreme Judicial Court of Massachusetts. Suffolk. May 25, 1925.)

1. Master and servant 70 (3)-Loss from employers' failure to follow manager's advice as to hedging properly included in accounting, in view of contracts.

Where there was nothing in contracts, which required employers to hedge or buy or sell cotton on advice or request of department manager, who was to share in profits, and all transactions were subject to employers' approval, loss alleged to have been caused by their failure to follow manager's advice as to hedging was properly included in their account. 2. Master and servant 70(3)-Profits held properly computed on sale and not as of date when plaintiff demanded sale and accounting.

[1, 2] At the hearing upon the bill in December, 1924, the judge in the superior court ruled that Stathopoulos was not in contempt, established the debt in the full amount of the note less the amount received upon the foreclosure with interest from December 22, 1924, and made a final decree establishing the debt and directing the application of the proceeds of the sale of the stock sought to be reached by the bill. From this decree, which was entered January 14, 1925, Reeksting appeals. There is nothing in the appeal. The order of Where plaintiff contracted to manage deNovember 30, 1923, was merely a temporary fendants' foreign department, and was to have restraining order (G. L. c. 214, § 9), which share of profits, in suit for accounting, profits would have terminated of its own force on on cotton purchased while plaintiff was in defendants' employ and sold after termination of December 6, 1923, but for the order extend-employment, held properly computed as of date ing the injunction until further order of the court. That "further order" was made, in effect, by the order of April 2, 1924, directing the preparation of a decree dismissing the bill with costs. Either Reeksting or Stathopoulos was authorized forthwith to move for the entry of such a decree, and the injunction was without force from the date of the order. It was made to secure such rights as Branis had; and when the court established that he had none, the injunction was functus officii, although by appropriate order it could have been continued in force pending an appeal. G. L. c. 214, §§ 21, 22. No such order was made, and so far as appears none was sought.

of sale and not as of date when plaintiff demanded that all cotton be sold and accounted for.

3. Appeal and error 694(1)—If evidence not reported, facts found by master conclusive unless inconsistent or plainly wrong.

Where evidence is not reported, facts found by the master are conclusive unless on their face they are mutually inconsistent or plainly wrong.

4. Equity 409-Where facts documentary or are in master's report, court may draw additional inferences of fact.

When all facts are documentary or are in a master's report, the court may draw additional or different inferences of fact from facts found.

5. Appeal and error

If there was any contempt it was not a contempt of which Reeksting could complain. 996-Supreme Judicial The injunction was, at least on the face of Court not bound by trial judge's findings the papers, not imposed for his benefit. It where all facts are in master's report. was granted to Branis, not to Reeksting. In dealing with inferences of fact drawn The power of the court to deal with it ended by trial judge from master's report, the Su

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