further breaches of the contract the court enjoined the defendant from practising his profession within the city of Boston. The court said: "The decree of the superior court [dismissing the plaintiff's bill] must be reversed, and a decree awarding an injunction, with costs, is to be entered. And, it being further shown that the larger part of the defendant's present practice has been derived from these patients, if the plaintiffs request, such money damages as they may have sustained from this breach of the contract also may be assessed."

In Muller v. Vettel (1862) 25 How. Pr. (N. Y.) 350, it appeared that the defendant had sold his butcher shop and business to the plaintiff, agreeing not to keep a butcher shop within six city blocks of the place sold for ten years, which agreement he violated. It was said: "In reference to the infraction by the defendant of his agreement, I am satisfied from the evidence the business recently conducted by him was commenced and continued for his benefit, although he may have received mere wages and no share of the profits, and that it was a substantial violation of his contract not to buy or keep such a shop; if it were not so, such an agreement could easily be evaded. He is, in his new place, attracting his old customers from the stand he sold, injuring the plaintiff and benefiting himself. He must, therefore, be restrained by injunction from similar acts. The plaintiff is also entitled to damages for past injuries under this contract, in order to do complete justice to all parties, as the court has obtained jurisdiction of the whole case, and there must, therefore, be a reference, if he desires it, for the purpose of ascertaining such damages. Judgment, therefore, must be given for the plaintiff, restraining the defendant from violating the agreement in question, and that he recover such damages as he shall be found by a referee to have sustained by past violation."

In Bradshaw v. Millikin (1917) 173 N. C. 432, L.R.A.1917E, 880, 92 S. E.

161, it appeared that the defendant had sold to the plaintiff his barber business and good will, at the same time agreeing to refrain from engaging in such business in a certain town for a period of two years, the contract containing a provision that, in case of failure, the parties bound themselves in the sum of $400 as liquidated damages. The defendant violated this agreement, and the court held that the plaintiff was entitled to relief by way of injunction and to any damages provable up to the operation of the injunction order.

And in Patterson V. Glassmire (1895) 166 Pa. 230, 31 Atl. 40, the court upheld a decree restraining the defendants from conducting a hairdressing' establishment within certain boundaries, in violation of a contract made when they had sold a similar business, and giving the plaintiffs leave to apply for a master to take evidence and state an account of profits from the business conducted in breach of the agreement.

My Laundry Co. V. Schmeling (1906) 129 Wis. 597, 109 N. W. 540, was an action to restrain the defendant from violating a contract not to engage in the laundry business, which was part of an agreement under which the defendant sold his interest in a laundry to the plaintiff's predecessors. A temporary injunction had been granted, restraining the breach of the contract, and damages allowed in the sum of $74. The award of damages was assigned as error. The court said: "That is predicated on the theory, in part, that the complaint contains no claim for damages, which seems contrary to the fact; and again, upon the theory that no damages were recoverable except such as were suffered before the action was commenced. an action of this sort it is sufficient to allege an actual breach of the agreement, and that damages have accrued, or will accrue, unless the court interferes to prevent a continuance of the breach, which will otherwise occur, and allegations otherwise bringing the case under a recognized head of equity jurisdiction. In case of the primary right involved

In

(Mass.,

The first, in substance, alleges that on November 5, 1920, the plaintiff entered into an agreement with the defendant, whereby the defendant agreed to purchase for the plaintiff 1,000 shares of stock,-"at 22 cents per share, the same to be paid for by the plaintiff on the basis of 20 per centum down, according to the defendant's so-called partial payment plan, plus the usual broker's commission, and that the plaintiff paid the said defendant

22 cents per share,

the

said 20 per centum plus said commission, and in all respects complied with the terms and requirements of the defendant at the time of entering into said agreement; that said defendant purchased said 1,000 shares of . stock at said and that on or about the 24th day of November, 1920, the plaintiff ordered and instructed said defendant to sell said stock at 50 cents per share, and that said [stock] reached a figure on or about November 25, 1920, in excess of said 50 cents per share; and the plaintiff

demanded of the defendant the profits between the purchase price of 22 cents per share and the sale price of 50 cents per share, minus the defendant's broker's commission, but the defendant refused to so pay said plaintiff and still refuses so to do."

The second count is on an account annexed to recover $260 and interest after demand, and is for the same cause of action as count 1.

The answer of the defendant to each count is a general denial, and an allegation of payment, and a special answer, in substance, that the purchase on the defendant's account of the said shares-"was conditional upon the compliance by the plaintiff with the requirement of 50 per cent initial payment, and thereafter,

. . on or about the 15th day of November, 1920, the defendant notified the plaintiff in writing to forward balance of the initial payment, being the sum of $67.50, but that the plaintiff did not within a reasonable time thereafter, or at any time

143 N. E. 315.)

thereafter, pay said balance to the defendant, and that on or about the 17th day of November the defendant, not having received from the plaintiff the balance of the initial payment canceled the transaction with the plaintiff, and thereafter, on or about the 6th day of December, 1920, returned to the plaintiff, through his attorney, the sum of $52.50 received by the defendant from the plaintiff on or about the 5th day of November, 1920."

At the close of the evidence before the judge of the municipal court the defendant requested rulings that upon the evidence the plaintiff is not entitled to recover upon count 1 of his declaration; that upon all the evidence the plaintiff is not entitled to recover on count 2 of his declaration; that the plaintiff is not entitled to recover damages based on the value of the stock on November 24, 1920; and that the plaintiff has not proved a contract binding the defendant to carry the stock for any specified time in consideration of the initial payment. The judge denied the requests, found for the plaintiff, and assessed the damages in the amount of $207.50, which is the full amount claimed by the plaintiff after deducting $52.50 which had been paid back to the plaintiff. At the request of the defendant the judge made a report to the appellate division, with the provision: the appellate division is of the opinion that the plaintiff is entitled to recover, and that damages should be assessed upon the basis of the difference between the price at which the plaintiff ordered the stock to be purchased and at which the defendant [plaintiff] purchased the stock, viz., 22 cents, and the price at which the stock could have been purchased at the time plaintiff received notice of cancelation from the defendant, it is stipulated (subject to the right of either party to appeal from the decision of the appellate division upon the question of law involved) that the price at which the stock could have been purchased upon the

"If

date which the plaintiff received notice of cancelation and for two days subsequent thereto was 30 cents per share.

The evidence offered in proof of the plaintiff's declaration is, in substance, that after some preliminary negotations on November 3, 1920, the plaintiff gave an order to the defendant to buy for him 1,000 shares of stock "on the 20 per cent partial payment plan," at 18 cents, and paid the defendant $46, and on November 5 he was told at the office of the defendant that the stock could not be bought for 18 cents; that he then gave an order to purchase at 22 cents a share and paid the defendant $6.50 additional; that the stock was bought by the defendant for 22 cents pursuant to the plaintiff's direction. The commission charged was $10, making a total charge by the defendant to the plaintiff of $230, against which there was a credit of $52.50, the money paid on account of the order. On November 16, 1920, the plaintiff received a letter and statement from the defendant, dated November 15, 1920; the statement showed an initial charge of 50 cents as against the contract charge of 22 cents. November 16, 1920, the plaintiff saw the order clerk at the office of the defendant and was told "they had changed the required initial payment the day he bought it, but she did not know it at the time the order was taken; [that] he would have to pay 50 per cent, or they would cancel the contract." The plaintiff objected, and the order clerk said, "I will see Mr. Fay." She went out and came back, and said, "You have got to pay 50 per cent, or we will cancel the contract." The plaintiff did not pay the additional amount required, and on November 18 received a letter from the defendant stating that he had canceled the contract. On November 24, 1920, the plaintiff ordered the defendant to sell 1,000 shares at 50 cents; and there was evidence that the stock sold in the market on that day sold as high as 58 cents. On De

On

cember 6, 1920, the defendant sent the plaintiff $52.50 in cash, which the plaintiff retained, though protesting that he held it subject to the order of the defendant. The declaration contains no allegation that the defendant agreed to carry the stock for the plaintiff, and there was no evidence of such an agreement other than as may be inferred from the fact that the stock was bought for the plaintiff on a "partial payment plan."

The declaration and the reported evidence do not allege or support a claim that the defendant agreed to sell the stock bought on the plaintiff's order, when directed so to do by the plaintiff, nor that he agreed to use due diligence and skill in attempting to do so, nor that he would pay the plaintiff the profit upon receiving a "sell order," if the stock should reach a certain figure, irrespective of whether the stock should be sold by the defendant at that figure. The contention of the plaintiff now presented is that the contract with the defendant was a specific and definite contract which could not be altered, amended, or canceled at any time without the plaintiff's consent, and that, at all events, it was binding on both parties until December 5, 1920, which was one month subsequent to the date of purchase by the plaintiff. and that the defendant's failure to hold the stock for the full five months is the real breach of this contract, not his refusal to go on with the contract, as stated in his letter of November 17, 1920.

It is plain the order and its acceptance did not operate to transfer the title of the stock to the plaintiff when purchased. It manifestly did contemplate that the stock should be bought and held by the defendant for the delivery and passing of title when full payment had been made. at the expiration of five months, or before that time if the plaintiff chose to anticipate the expiration of his credit by a present complete payment. No obligation rested upon the defendant other than to be ready

or

to transfer the stock upon a payment of the agreed price. On the foregoing facts it is plain there are no exceptional circumstances agreements which would compel the defendant to carry the stock during the credit period, unless the plaintiff should elect to order its sale before the expiration of credit. There is nothing in the facts to prevent the repudiation of the contract by either party during such period, the repudiator becoming liable for the actual loss

Broker-right to repudiate contract of purchase.

at the time of the breach. And

there is no room for the contention of the plaintiff that he is entitled to damages determined by the value of the stock in the market when it was ordered to be sold. Hall v. Paine, 224 Mass. 62, 112 N. E. 153, L.R.A. 1917C, 737, and cases collected.

As the plaintiff has neither amended his declaration nor filed a remittitur within the time given to do so, it follows, in accordance with the order of the Municipal Court, that judgment is to be entered for the defendant. So ordered.

In the reported case (MAW v. FAY, ante, 1176,) it is held that where a broker repudiates his contract to purchase stock on the partial payment plan, before expiration of the credit period, the time as of which the damages should be computed is the date of breach of the contract by the broker, and that the latter cannot be held liable for the market value of the stock at a subsequent time, before expiration of the credit period, when it was ordered sold by the customer.

No case other than the FAY CASE has been found which involves the precise question under annotation. On the general question of the measure of damages for breach of contract by a broker to carry stock, there is much conflict of authority. The difficulty in this class of cases is caused by the fluctuating value of the security. Should the damages be assessed at the market value at the time of the breach, or at the market value within a reasonable time thereafter; or should the highest price at some subsequent period be taken, as when the stock is ordered to be sold by the customer; or should the highest price be taken between the time of the breach and the date of the trial? The rule supported by many cases, which

seems to be the soundest and most equitable one, and is sometimes called the New York rule because first adopted and developed in that state, is that the measure of damages when a broker wrongfully sells his customer's stock is the highest market price of the stock between the time the customer has notice of the sale and a reasonable time thereafter within which he could go into the market and purchase the stock. This rule was adopted by the Federal Supreme Court in Galigher v. Jones (1889) 129 U. S. 193, 32 L. ed. 658, 9 Sup. Ct. Rep. 335, as the one which was most reasonable. The court said that other goods wrongfully converted are generally supposed to have a fixed market value at which they can be replaced at any time, and that therefore, with regard to them, the ordinary measure of damages is their value at the time of conversion; but that the application of this rule to stocks would be very inadequate and unjust; that to allow merely their value at the time of conversion would, in the case of a broker holding the stocks of his principal, afford no remedy at all, the effect being to give the broker control of the stock, subject only to nominal damages.

The rule above indicated does not,