By the decision already rendered transactions with the special features which the case presents and which are set forth in the opinion are held to be purchases from the broker under Massachusetts law. No sufficient reason appears for reconsidering this conclusion. So far as the opinion expresses views of the Massachusetts rule in the simple and ordinary case of the purchase or sale of securities by a broker for his customer, the views are merely of foreign law upon a collateral question unnecessary to a decision upon the facts here presented.
If in the substitution of the contract for the one that was cancelled the plaintiff acquired any rights, they arose under the duty to restore benefits received when advantage of the statute of frauds is taken. The substituted contract is unenforceable by reason of the statute, but it may be that the plaintiff may be entitled to recover the value of the gain to the defendant's decedent in obtaining the cancellation of the original contract. By invoking the statute as to the new contract, the cancellation of the original one was not set side, but liability may perhaps be imposed to pay what it was worth to be released from it. At best it would be a small amount so far as now appears. The plaintiff has made no claim of such a character and its merits are not presented. The opinion is intended to express no views denying its validity.
Nor is it necessary to consider the effect of the Massachusetts statute of frauds in a suit here upon a contract made and to be performed there. Aside from the plaintiff's concession that the statute applies to sales of corporate stocks, the local statute (P. L., c. 166, s. 4) is to be enforced if that of Massachusetts is not, and there is no difference between them in their inclusion of stocks within their scope. Within the meaning of "choses in action," as the phrase is used in the local statute, stocks are clearly to be embraced. No legislative purpose to include notes and bonds, unquestionably thus to be described, and to exclude stocks from the description, can be found.
Further consideration of the motion needs no statement.
Former result affirmed.
All concurred. *Page 186